Robinson v. Wells Fargo Bank National Association et al

Filing 29

ORDER granting moving defendants' 22 Motion to Dismiss for Failure to State a Claim; granting 19 Motion to Dismiss for Failure to State a Claim ; Ms. Robinson's amended complaint is dismissed with prejudice and leave to amend is denied; Ms. Robinson's 24 Motion to Intervene is construed as a response to defendants' motions to dismiss and clerk is directed to remove filing from court's motions calendar by Judge James L. Robart.(RS) Modified on 5/26/2017/cc Barbara Robinson (RS).

Download PDF
1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 8 9 10 BARBARA ROBINSON, CASE NO. C17-0061JLR ORDER GRANTING MOTIONS TO DISMISS Plaintiff, 11 v. 12 13 WELLS FARGO BANK NATIONAL ASSOCIATION, et al., 14 Defendants. 15 I. INTRODUCTION 16 Before the court are two motions: (1) Defendants Wells Fargo Bank National 17 Association, as Trustee for the Certificate Holders of the MLMI Trust, Mortgage Loan 18 Asset-Backed Certificates Series 2005 WMC2 (“Wells Fargo”), Mortgage Electronic 19 Registration System (“MERS”), Nationstar Mortgage LLC (“Nationstar”), and John 20 Bray’s (collectively, “Moving Defendants”) motion to dismiss (Wells MTD (Dkt. # 19)) 21 pro se Plaintiff Barbara Robinson’s amended complaint (FAC (Dkt. ## 13-1, 13-2)); and 22 ORDER - 1 1 (2) Defendant Bank of America, N.A.’s (“BANA”) motion to dismiss Ms. Robinson’s 2 amended complaint (2d BANA MTD (Dkt. # 22)). 3 In addition, before the court are two documents Ms. Robinson filed: (1) “Notice 4 of Motion to Intervene and Order Dismissing All Defendants Motions for Dismissal for 5 Lack of Standing,” and (2) “Memorandum to Support Order Dismissing All Defendants 6 [sic] Motions for Dismissal for Lack of Standing.” (See Resp. (Dkt. ## 24, 24-1).) 7 The court liberally construes Ms. Robinson’s “motion” and memorandum as a response 8 to Defendants’ motions to dismiss because a motion to intervene is nonsensical when Ms. 9 Robinson is already a party to this lawsuit. 1 See Fed. R. Civ. P. 24; Blaisdell v. Frappiea, 10 729 F.3d 1237, 1241 (9th Cir. 2013) (“Courts in this circuit have an obligation to give a 11 liberal construction to the filings of pro se litigants.”). 12 The court has considered Defendants’ motions, Ms. Robinson’s response, all 13 submissions filed in support of and opposition to the motions, the relevant portions of the 14 record, and the applicable law. Being fully advised, 2 the court GRANTS the motions and 15 dismisses Ms. Robinson’s complaint with prejudice and without leave to amend. 16 1 17 18 19 20 21 Moving Defendants also suggest that Ms. Robinson’s “motion to intervene” may also stem from a misapprehension of Federal Rule of Civil Procedure 5.1. (Wells Reply (Dkt. # 26) at 2.) Under Rule 5.1, a party that files a paper questioning the constitutionality of a state statute must file a notice so stating and must serve the notice and paper on the state attorney general. See Fed. R. Civ. P. 5.1(a). The attorney general then has the option to intervene in the action within 60 days of the notice, and the court may not issue final judgment holding the statute unconstitutional before the 60-day time period has expired. Fed. R. Civ. P. 5.1(c). However, the court may reject a constitutional challenge to a state statute at any time. Id. Indeed, the court rejects herein Ms. Robinson’s assertion that Washington’s Deeds of Trust Act is unconstitutional. See infra § III.D. 2 22 No party requested oral argument, and the court determines that oral argument would not help its disposition of the motions. See Local Rules W.D. Wash. LCR 7(b)(4). ORDER - 2 1 II. BACKGROUND 2 On February 16, 2005, WMC Mortgage Corp. (“WMC”) loaned Ms. Robinson 3 $596,031.00 to purchase the property located at 13540 Southeast 159th Place, Renton, 4 Washington 98058 (“the Property”). (Varallo Decl. (Dkt. # 23) ¶ 2, Ex. A.) 3 The loan is 5 secured with a Deed of Trust (“DOT”) on the Property, and the DOT is recorded in King 6 County. (See id.) The DOT lists Ms. Robinson and her husband as borrowers, WMC as 7 the lender, Bishop & Lynch of King County as the trustee, and MERS as the beneficiary, 8 solely as nominee of the lender and its heirs. (Id.) 9 On January 5, 2010, a representative of MERS as nominee for WMC recorded a 10 Corporate Assignment of Mortgage/Deed of Trust, which assigned the DOT to Wells 11 Fargo, as trustee for the securitized trust investor. (Id. ¶ 3, Ex. B.) That same day, Wells 12 Fargo recorded an Appointment of Successor Trustee, which appointed Northwest 13 Trustee Services, Inc. (“NW Trustee”) as the trustee on the DOT. (Id. ¶ 4, Ex. C.) On 14 15 3 16 17 18 19 20 21 22 Generally, a district court may not consider material beyond the complaint in ruling on a Rule 12(b)(6) motion to dismiss. Lee v. City of L.A., 250 F.3d 668, 688 (9th Cir. 2001). The Ninth Circuit, however, has carved out limited exceptions to this rule. On a motion to dismiss, the court may consider materials incorporated into the complaint or matters of public record. See Coto Settlement v. Elsenberg, 593 F.3d 1031, 1038 (9th Cir. 2010). Federal Rule of Evidence 201 provides, in pertinent part, “[a] judicially noticed fact must be one not subject to reasonable dispute in that it is . . . capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b)(2). “A trial court may presume that public records are authentic and trustworthy.” Gilbrook v. City of Westminster, 177 F.3d 839, 858 (9th Cir. 1999) (citing Johnson v. City of Pleasanton, 982 F.2d 350, 352 (9th Cir. 1992)); see also Allshouse v. Caliber Home Loans, Inc., No. CV1401287DMGJCX, 2014 WL 12594210, at *3 (C.D. Cal. Oct. 29, 2014) (“Courts routinely take judicial notice of assignments of deed of trust and similar recorded documents” in motions to dismiss.). Thus, in addition to Ms. Robinson’s amended complaint, the court may also consider the public records appended to Christopher G. Varallo’s declaration. (See generally Varallo Decl.) ORDER - 3 1 January 28, 2010, NW Trustee recorded a Notice of Trustee’s Sale, which scheduled a 2 sale of the Property in foreclosure for April 30, 2010. (Id. ¶ 5, Ex. D.) On October 3, 3 2011, NW Trustee recorded a Notice of Discontinuance of Trustee’s Sale, which 4 discontinued the sale of the Property in foreclosure. (Id. ¶ 6, Ex. E.) 5 On October 25, 2011, BANA, the servicer of the loan at that time, and Ms. 6 Robinson executed a Loan Modification Agreement (“LMA”) under which Ms. 7 Robinson’s monthly payments were modified effective August 1, 2011. (Id. ¶ 7, Ex. F; 8 see also id. ¶ 9, Ex. H (describing BANA as “the then-servicer of the loan secured by the 9 [DOT]”).) BANA recorded the LMA in King County on October 25, 2011. (Id. ¶ 7, Ex. 10 11 F.) On August 15, 2013, BANA mistakenly recorded an Assignment of Deed of Trust 12 assigning any interest in the loan and DOT from BANA to Nationstar. (Id. ¶ 8, Ex. G; 13 see id. ¶ 9, Ex. H.) On May 3, 2016, BANA recorded a Corrective Assignment of Deed 14 of Trust to clarify that BANA had recorded the August 15, 2013, Assignment of Deed of 15 Trust in error and that the original beneficiary, Wells Fargo—rather than Nationstar— 16 remains the beneficiary on the DOT. (Id. ¶ 9, Ex. H.) 17 On June 22, 2016, Wells Fargo recorded an Appointment of Successor Trustee, 18 which appointed Defendant Aztec Foreclosure Corporation of Washington (“Aztec”) as 19 trustee. 4 (Id. ¶ 10, Ex. I.) On August 15, 2016, Aztec recorded a Notice of Trustee’s 20 Sale, which scheduled a sale of the Property for December 16, 2016. (Id. ¶ 11, Ex. J.) 21 22 4 Aztec has not appeared in this action. (See generally Dkt.) ORDER - 4 1 Based on the record before the court, it is unclear if the Property has been sold in 2 foreclosure to date. (See Compl.; FAC; 2d BANA MTD at 4.) 3 Ms. Robinson filed this action in King County Superior Court on December 12, 4 2016. (See Compl. (Dkt. # 1-1).) Nationstar removed the action to this court on January 5 13, 2017. (Not. of Rem. (Dkt. # 1).) On January 20, 2017, BANA filed its first motion to 6 dismiss the complaint. (1st BANA MTD (Dkt. # 7).) Ms. Robinson responded by filing 7 a motion to amend her complaint. (MTA (Dkt. # 13).) Moving Defendants then filed 8 their first motion to dismiss directed at Ms. Robinson’s proposed amended complaint. 9 (See Wells MTD.) On April 4, 2017, the court granted Ms. Robinson’s motion to amend 10 her complaint and denied BANA’s first motion to dismiss as moot because BANA’s 11 motion addressed at Ms. Robinson’s original complaint. (See 4/4/17 Order (Dkt. # 21) at 12 3-4.) On April 18, 2017, BANA filed its second motion to dismiss, which it directed at 13 Ms. Robinson’s amended complaint. (See 2d BANA MTD.) The court now considers 14 Moving Defendants and BANA’s motions to dismiss Ms. Robinson’s amended 15 complaint. 16 17 18 III. A. ANALYSIS Legal Standard When considering a motion to dismiss under Rule 12(b)(6), the court construes the 19 complaint in the light most favorable to the non-moving party. Livid Holdings Ltd. v. 20 Salomon Smith Barney, Inc., 416 F.3d 940, 946 (9th Cir. 2005). The court must accept 21 all well-pleaded allegations of material fact as true and draw all reasonable inferences in 22 favor of the plaintiff. See Wyler Summit P’ship v. Turner Broad. Sys., Inc., 135 F.3d 658, ORDER - 5 1 661 (9th Cir. 1998). “To survive a motion to dismiss, a complaint must contain sufficient 2 factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” 3 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 4 544, 570 (2007)); see also Telesaurus VPC, LLC v. Power, 623 F.3d 998, 1003 (9th Cir. 5 2010). “A claim has facial plausibility when the plaintiff pleads factual content that 6 allows the court to draw the reasonable inference that the defendant is liable for the 7 misconduct alleged.” Iqbal, 556 U.S. at 663. 8 The court, however, need not accept as true a legal conclusion presented as a 9 factual allegation. Id. at 678. Although Federal Rule of Civil Procedure 8 does not 10 require “detailed factual allegations,” it demands more than “an unadorned, the- 11 defendant-unlawfully-harmed-me accusation.” Id. (citing Twombly, 550 U.S. at 555). A 12 pleading that offers only “labels and conclusions or a formulaic recitation of the elements 13 of a cause of action” will not survive a motion to dismiss under Rule 12(b)(6). Id. 14 Further, a pleading may fail to state a claim under Rule 12(b)(6) “either by lacking a 15 cognizable legal theory or by lacking sufficient facts alleged under a cognizable legal 16 theory.” Woods v. U.S. Bank N.A., 831 F.3d 1159, 1162 (9th Cir. 2016). Thus, a 17 complaint must contain sufficient factual allegations to “plausibly suggest entitlement to 18 relief, such that it is not unfair to require the opposing party to be subjected to the 19 expense of discovery and continued litigation.” Starr v. Baca, 652 F.3d 1202, 1216 (9th 20 Cir. 2011). 21 22 Finally, although “the allegations of [a pro se plaintiff’s] complaint, ‘however inartfully pleaded’ are held ‘to less stringent standards than normal pleadings drafted by ORDER - 6 1 lawyers,’” Hughes v. Rowe, 449 U.S. 5, 9 (1980) (quoting Haines v. Kerner, 404 U.S. 2 519, 520 (1972)), a court may still dismiss a complaint where “a liberal construction does 3 not remedy the palpable deficiencies in [the] complaint,” Wallmuller v. Russell, No. 4 C14-5121RBL-JRC, 2014 WL 2475978, at *2 (W.D. Wash. June 3, 2014). 5 B. 6 Moving Defendants’ Motion to Dismiss Although Ms. Robinson’s amended complaint is difficult to understand, she 7 appears to contend that the treatment of her loan and the commencement of nonjudicial 8 foreclosure proceedings against the Property were somehow wrongful. (See FAC.) 9 Moving Defendants assert that Ms. Robinson fails to allege sufficient facts or state a 10 cognizable legal theory to adequately underpin her claims concerning the foreclosure 11 process on the Property. (See generally Wells MTD.) The court now considers Moving 12 Defendants’ motion to dismiss Ms. Robinson’s amended complaint. 13 1. Claims Against Mr. Bray 14 Ms. Robinson names Mr. Bray as a defendant in the amended complaint (see FAC 15 ¶ 2), but the amended complaint is otherwise devoid of any specific factual allegations 16 about him (see generally id.). Indeed, Ms. Robinson nonsensically alleges that Mr. Bray 17 is a “foreign corporation[] whose corporate domicile . . . is unknown.” (Id. ¶ 2.) Moving 18 Defendants argue that the court should dismiss Ms. Robinson’s claims against Mr. Bray 19 because Ms. Robinson fails to allege any facts connecting Mr. Bray to the Property, her 20 loan, or the DOT at issue in her amended complaint. (Wells MTD at 3-4.) The court 21 agrees that Ms. Robinson fails to allege any basis for Mr. Bray’s personal liability. 22 // ORDER - 7 1 Accordingly, the court grants Moving Defendants’ motion concerning Mr. Bray and 2 dismisses Ms. Robinson’s suit against him. 3 2. Claims Against MERS 4 Ms. Robinson’s amended complaint is similarly almost entirely silent concerning 5 MERS. In the single specific reference to MERS, Ms. Robinson alludes to “the parsed 6 sale of certain rights under the ‘Security’ in part to at least one third party (Defendant 7 MERS).” (FAC ¶ 11.) Moving Defendants argue that the court should dismiss MERS 8 because Ms. Robinson has not alleged the elements of any viable theory of recovery 9 against MERS. (Wells MTD at 4.) The court agrees and dismisses Ms. Robinson’s suit 10 against MERS. 11 3. Claims Relating to the Non-Judicial Foreclosure Process 12 The amended complaint leads off with a series of broad allegations that appear to 13 assert that the nonjudicial foreclosure proceedings against the Property were or are 14 improper in some way. (See FAC ¶¶ B.1-B.11.) Ms. Robinson alleges that Wells Fargo 15 “has failed to demonstrate that it, and not the Certificateholders [of the MLMI Trust, 16 Mortgage Loan Asset-Backed Certificates, Series 2005 WMC2]” is the beneficiary of 17 Ms. Rrobinson’s DOT. (Id. ¶ 4.) She further alleges that BANA has not demonstrated 18 standing, there is a lien on the Property, and her request to cancel a foreclosure sale was 19 denied. (Id. ¶¶ 5-6, 8-9.) The gist of Ms. Robinson’s allegations appears to be that a 20 “severance of the ownership and possession of the original Security and [DOT] has 21 occurred,” precluding foreclosure. (See id. ¶ 11.) Moving Defendants assert that these 22 allegations do not plausibly show any defect in the foreclosure proceedings or any basis ORDER - 8 1 upon which Moving Defendants could be held liable to Ms. Robinson under any theory. 2 (Wells MTD at 4.) The court agrees. 3 Although Ms. Robinson’s allegations are difficult to understand, to the extent she 4 contends that securitization of her loan precludes foreclosure, her allegations fail to state 5 a claim under Rule 12(b)(6). First, her complaint fails to state sufficient factual 6 allegations to describe the securitization of her loan, let alone any irregularities in that 7 process. (See generally FAC.) Second, and more importantly, securitization and any 8 related assignments do not ordinarily constitute a defense to foreclosure under 9 Washington law unless the borrower shows a genuine risk of paying the same debt twice. 10 Velasco v. Discover Mortg. Co., No. 45642-7-II, 2015 WL 1753677, at *11 (Wash. Ct. 11 App. Apr. 14, 2015) (unpublished) (noting the general rejection by federal courts of “the 12 argument that securitization inherently changes the legal relationship between the parties 13 to a promissory note and deed of trust, and stating, “[w]e hold that securitization does not 14 discharge the [borrowers’] obligation to pay the promissory note”); see also Andrews v. 15 Countrywide Bank, NA, 95 F. Supp. 3d 1298, 1301 (W.D. Wash. 2015), reconsideration 16 denied, No. C15-0428JLR, 2015 WL 12085856 (W.D. Wash. Apr. 7, 2015) (“[A] 17 borrower generally lacks standing to challenge the assignment of its loan documents 18 unless the borrower shows that it is at a genuine risk of paying the same debt twice.”); 19 Borowski v. BNC Mortg., Inc., No. C12-5867 RJB, 2013 WL 4522253, at *5 (W.D. 20 Wash. Aug. 27, 2013) (“[T]here is ample authority that borrowers, as third parties to the 21 assignment of their mortgage (and securitization process), cannot mount a challenge to 22 the chain of assignments unless a borrower has a genuine claim that they are at risk of ORDER - 9 1 paying the same debt twice if the assignment stands.”). Ms. Robinson has not alleged she 2 is subject to such a risk. (See generally FAC.) Thus, to the extent Ms. Robinson’s 3 amended complaint is based on the premise that securitization of her loan discharged her 4 obligation to repay her promissory note or is otherwise relevant to the nonjudicial 5 foreclosure proceedings against the Property, she fails to state a claim. 6 Ms. Robinson also apparently contends that foreclosure on the Property is 7 improper due to the alleged “severance of the ownership and possession” of her 8 promissory note and DOT. (See FAC ¶ 11.) This contention also contravenes 9 Washington law. First, the person authorized to enforce a promissory note does not have 10 to be the owner of that note; to the contrary, the holder of the note can enforce it 11 regardless of who owns the note. See RCW 62A.3-301 (“‘Person entitled to enforce’ an 12 instrument means . . . the holder of the instrument . . . . A person may be a person entitled 13 to enforce the instrument even though the person is not the owner of the instrument.”); 14 Deutsche Bank Nat. Tr. Co. v. Slotke, 367 P.3d 600, 604 (Wash. Ct. App. 2016) (“[I]t is 15 the holder of a note who is entitled to enforce it. It is not necessary for the holder to 16 establish that it is also the owner of the note secured by the deed of trust.”). 17 Second, the Washington Supreme Court has declared that the Deed of Trust Act 18 “contemplates that the security instrument will follow the note, not the other way 19 around.” Bain v. Metro. Mortg. Grp., Inc., 285 P.3d 34, 44 (Wash. 2012); see also 20 Bavand v. OneWest Bank, 385 P.3d 233, 248 (Wash. Ct. App. 2016), as modified (Dec. 21 15, 2016) (“By operation of law, [the borrower’s] [DOT] followed the negotiation of that 22 note now held by [the foreclosing party]. Accordingly, [the foreclosing party] had the ORDER - 10 1 ability to enforce the [DOT] due to its possession of the note.”). Based on these 2 authorities, it follows logically that the noteholder is entitled to enforce both the note and 3 the DOT by operation of law. See Bavand, 385 P.3d at 248-49 (“[The bank’s] authority 4 to enforce the note and [DOT] arose by operation of law due to the bank’s status as 5 holder of the delinquent note.”). Thus, “it is not a violation in Washington to split the 6 note from the deed.” Zamzow v. Homeward Residential, Inc., No. C12-5755 BHS, 2012 7 WL 6615931, at *1 (W.D. Wash. Dec. 19, 2012) (citing Bain). Based on this authority, 8 any contention in the amended complaint that foreclosure is improper because the note 9 and DOT are “split” fails as a matter of law. 10 Ms. Robinson also contends that “Defendants are legally precluded from 11 foreclosing on the Property unless and until it [sic] can demonstrate full legal standing to 12 do so.” (FAC ¶ 11.) This allegation is a legal conclusion that is not entitled to a 13 presumption of truth. See Iqbal, 556 U.S. at 678. Further, in a nonjudicial foreclosure of 14 a DOT under Washington law, the foreclosing party (i.e., the beneficiary under the DOT) 15 must provide to the trustee a declaration under penalty of perjury stating that the 16 beneficiary is the actual holder of the note or other obligation secured by the DOT. See 17 RCW 61.24.030(7). This declaration is sufficient proof of the beneficiary’s authority to 18 foreclose. Id. Ms. Robinson does not allege that there were any irregularities in this 19 process or that Wells Fargo is not the actual holder of Ms. Robinson’s promissory note. 20 (See generally FAC.) Thus, to the extent Ms. Robinson contends that Moving 21 Defendants or Wells Fargo must produce her original note before nonjudicially 22 foreclosing on the Property, her claim fails as a matter of law. See Bavand, 385 P.3d at ORDER - 11 1 239 (rejecting a borrower’s contention that the beneficiary must produce the original note 2 before foreclosing and noting that RCW 61.24.030(7) establishes what proof is necessary 3 to foreclose nonjudicially). 4 5 In sum, Ms. Robinson fails to allege any plausible foundation for any claim against Moving Defendants based on the nonjudicial foreclosure of the Property. 6 4. FDCPA claims 7 The amended complaint contains a section entitled “FDCPA Violations,” directed 8 against Nationstar. (See FAC ¶¶ 12-16.) To state a claim under the Fair Debt Collections 9 Practices Act (“FDCPA”), Ms. Robinson must allege facts supporting three threshold 10 elements: (1) that Ms. Robinson is “consumer’; (2) that Nationstar is a “debt collector’; 11 and (3) that Nationstar “committed some act or omission in violation of the FDCPA.” 12 See Robinson v. Managed Accounts Receivables Corp., 654 F. Supp. 2d 1051, 1057 (C.D. 13 Cal. 2009) (citing Withers v. Eveland, 988 F. Supp. 942, 945 (E.D. Va. 1997) and 15 14 U.S.C. § 1692a(3), (6)). Ms. Robinson fails to allege facts supporting these required 15 elements of an FDCPA claim. 16 Under the FDCPA a “debt collector” is 17 any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another. 18 19 15 U.S.C.A. § 1692a(6). However, the definition excludes 20 21 any person collecting or attempting to collect any debt owed or due or asserted to be owed or due another to the extent such activity . . . concerns a debt which was not in default at the time it was obtained by such person. 22 ORDER - 12 1 15 U.S.C.A. § 1692a(6)(F)(iii). Thus, a loan servicer, such as Nationstar, which acquires 2 servicing rights before the loan at issue is in default, is not a debt collector under the 3 FDCPA. See King v. Bank of Am., N.A., No. C15-1014-TSZ, 2015 WL 12930129, at *5 4 (W.D. Wash. Dec. 28, 2015) (“Case law makes clear that mortgage servicing companies 5 are not debt collectors for purposes of the FDCPA unless the mortgages were in default 6 when they were taken for servicing.”). Here, Ms. Robinson does not allege that her loan 7 was in default at the time that Nationstar began servicing the loan (see generally FAC), 8 and thus she fails to state an FDCPA claim against Nationstar. 9 5. Injunctive and Declaratory Relief 10 Finally, Ms. Robinson also seeks both injunctive and declaratory relief. (FAC 11 ¶¶ A.17-33.) Specifically, Ms. Robinson seeks temporary and permanent injunctive relief 12 against Wells Fargo because Wells Fargo seeks to initiate foreclosure without the 13 necessary “standing.” (FAC ¶¶ A.17-24.) Ms. Robinson’s declaratory relief claim is 14 based on similar allegations that Wells Fargo cannot foreclose because it does not possess 15 “the requisite legal rights” or cannot “satisfy the legal standing requirements” to initiate 16 foreclosure on the Property. (FAC ¶¶ 25-32.) Thus, Ms. Robinson’s claims for 17 injunctive and declaratory relief are based on her allegations that the nonjudicial 18 foreclosure proceedings against the Property were or are improper in some way. (See 19 FAC ¶¶ B.1-11.) The court, however, has already dismissed any claim based on Ms. 20 Robinson’s allegations concerning the nonjudicial foreclosure proceedings against the 21 Property. See supra § III.B.3. 22 // ORDER - 13 1 Moreover, a claim for injunctive relief, standing alone, does not state a cause of 2 action. Kwai Ling Chan v. Chase Home Loans Inc., No. C12-0273JLR, 2012 WL 3 1252649, at *3 (W.D. Wash. Apr. 13, 2012) (“It is well settled that a claim for ‘injunctive 4 relief’ standing alone is not a cause of action.”) (citing Jensen v. Quality Loan Serv. 5 Corp., 702 F. Supp. 2d 1183, 1201 (E.D. Cal. 2010) (“A request for injunctive relief by 6 itself does not state a cause of action.”)). Injunctive relief is available only if Ms. 7 Robinson is entitled to such a remedy on an independent cause of action. As discussed 8 above, Ms. Robinson fails to state any independent claim against Moving Defendants. 9 Accordingly, the court grants Moving Defendants’ motion and dismisses her claim for 10 11 injunctive relief as well. Ms. Robinson’s request for declaratory relief against BANA and Nationstar is 12 likewise unavailing. (See FAC ¶¶ 26-33.) Moving Defendants note that Ms. Robinson’s 13 designation of BANA as the foreclosing party in this section of her amended complaint 14 appears to be a mistake because Wells Fargo is the current beneficiary of Ms. Robinson’s 15 DOT and is the party that initiated the present nonjudicial foreclosure. (Wells MTD at 11 16 n.9.) A claim for declaratory relief must present “an actual case or controversy” between 17 the parties “to ensure that . . . that the judgment does not become an unconstitutional 18 advisory opinion.” Rhoades v. Avon Prods., Inc., 504 F.3d 1151, 1157 (9th Cir. 2007) 19 (citations omitted). “A controversy must satisfy a simple test: ‘Basically, the question in 20 each case is whether the facts alleged, under all the circumstances, show that there is a 21 substantial controversy, between parties having adverse legal interests, of sufficient 22 immediacy and reality to warrant the issuance of a declaratory judgment.’” Bisson v. ORDER - 14 1 Bank of Am., N.A., 919 F. Supp. 2d 1130, 1139 (W.D. Wash. 2013) (quoitng 2 MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 127 (2007)). Thus, in order to be 3 entitled to declaratory relief, Ms. Robinson must allege a claim under some substantive 4 law that entitles her to this relief. Id. at 1141. In other words, the Declaratory Judgment 5 Act creates only a remedy, not a cause of action. Id. Without a valid cause of action or 6 case, Ms. Robinson has no claim for declaratory relief. Accordingly, the court grants 7 Moving Defendants’ motion to dismiss Ms. Robinson’s claims for injunctive and 8 declaratory relief. 9 C. BANA’s Motion to Dismiss 10 BANA filed a separate motion to dismiss Ms. Robinson’s claims. (2d BANA 11 MTD.) Ms. Robinson appears to attempt to allege claims under the FDCPA and for 12 injunctive and declaratory relief against BANA. (See generally FAC.) The court now 13 considers BANA’s motion to dismiss Ms. Robinson’s amended complaint. 14 1. FDCPA Claims 15 As a threshold matter, Ms. Robinson fails to state an FDCPA claim against BANA 16 because none of the FDCPA allegations in her amended complaint relate to BANA. (See 17 FAC ¶¶ 12-16.) Ms. Robinson’s allegations relate only to conduct that occurred in 18 October 2016 or later—more than three years after BANA assigned its interest in the loan 19 to Nationstar. (See id.; see also Varallo Decl. ¶¶ 8-9, Exs. G-H.) 20 Further, even if Ms. Robinson could allege an FDCPA claim against BANA, such 21 a claim would be time-barred. A plaintiff must bring an FDCPA claim “within one year 22 from the date on which the violation occurs.” 15 U.S.C. § 1692k(d). Ms. Robinson’s ORDER - 15 1 allegations and the publicly recorded documents related to the loan show that BANA had 2 no involvement with Ms. Robinson’s loan after August 2013. (See generally FAC; 3 Varallo Decl. ¶¶ 8-9, Exs. G-H.) Thus, even if Ms. Robinson had alleged an FDCPA 4 claim against BANA, the claim is time-barred by the applicable statute of limitations. 5 See 15 U.S.C. § 1692k(d). Based on the foregoing analysis, the court grants BANA’s 6 motion and dismisses Ms. Robinson’s FDCPA claims against BANA. 7 2. Injunctive and Declaratory Relief 8 As noted above, Ms. Robinson’s claims for injunctive and declaratory relief arise 9 from her allegations that the nonjudicial foreclosure proceedings against the Property 10 were or are improper in some way. (See FAC ¶¶ B.1-11, A.17-32.) The court, however, 11 has already dismissed this claim, see supra § III.B.3, and as discussed above, claims for 12 injunctive or declaratory relief cannot stand alone but must be grounded in a valid 13 underlying claim, see supra § III.B.5. 14 Further, Ms. Robinson does not allege facts suggesting that BANA has any 15 interest in the property, and BANA submits publicly recorded documents that 16 demonstrate that BANA does not have a present interest in the Property and is a stranger 17 to the loan. (Varallo Decl. ¶¶ 8-9, Exs. G-H (showing that BANA serviced the loan until 18 August 2013); see also FAC ¶ 32 (alleging that Nationstar is the “servicer”).) As such, 19 Ms. Robinson cannot plausibly claim that BANA has a competing claim for ownership of 20 the Property or enforcement of the loan. As such, there is no substantial controversy 21 between BANA and Ms. Robinson that might render BANA a proper subject of 22 // ORDER - 16 1 injunctive or declaratory relief concerning the nonjudicial foreclosure on the Property. 2 Accordingly, the court grants BANA’s motion and dismisses these claims against BANA. 3 D. 4 Ms. Robinson’s Response Nothing in Ms. Robinson’s response persuades the court otherwise. 5 (See 5 generally Resp.) First, Ms. Robinson asserts that Washington’s Deeds of Trust Act, 6 RCW 61.24.005, et seq., is an unconstitutional bill of attainder. (Resp. at 3.) The 7 principle Ms. Robinson invokes prohibits a legislative act that “determines guilt and 8 inflicts punishment upon an identifiable individual without . . . the protections of a 9 judicial trial.” See State v. Manussier, 921 P.2d 473, 479 (Wash. 1996) (quoting Nixon v. 10 Adm’r of Gen. Servs., 433 U.S. 425, 468 (1977)) (discussing identical elements of a bill 11 of attainder under the United States and Washington constitutions). “Three elements 12 distinguish bills of attainder from constitutionally permissible legislation: (1) legislative 13 infliction of punishment upon (2) specifically designated persons or groups (3) in the 14 absence of the procedural safeguards of a judicial trial.” Id. (citing Selective Serv. Sys. v. 15 Minn. Pub. Interest Research Grp., 468 U.S. 841, 847 (1984), United States v. Lovett, 16 328 U.S. 303, 315 (1946), and United States v. Brown, 381 U.S. 437, 447 (1965)). 17 Washington’s Deeds of Trust Act contains none of these hallmarks. It does not 18 19 20 21 22 5 In addition to her response, Ms. Robinson also filed a “Declaration in Support of Notice of Motion to Intervene and Order Dismissing All Defendants’ Motions for Dismissal for Lack of Standing.” (See Robinson Decl. (Dkt. # 25).) Ms. Robinson’s declaration, however, is devoid any statements of fact. (See generally id.) Accordingly, the court disregards it. See Nigro v. Sears, Roebuck & Co., 784 F.3d 495, 497 (9th Cir. 2015) (“The district court can disregard a self-serving declaration that states only conclusions and not facts that would be admissible evidence.”). ORDER - 17 1 determine guilt; it does not inflict punishment; it does not single out an individual or 2 identifiable group. Rather, the Deeds of Trust Act regulates the operation of the power of 3 sale clauses in private deeds of trust, to the extent that parties include such clauses in 4 their agreements. Indeed, in Kennebec, Inc. v. Bank of the West, 565 P.2d 812 (Wash. 5 1977), Washington’s Supreme Court upheld the Act against a constitutional due process 6 challenge. The Court noted that the Deeds of Trust Act merely regulates the manner of 7 operation of contractual provisions authorizing nonjudicial foreclosure and does so 8 “almost solely for the protection of the debtor.” Id. at 816. The court therefore rejects 9 Ms. Robinson’s contention that the Deeds of Trust Act is an unconstitutional bill of 10 11 attainder. Ms. Robinson also assets that Defendants’ attorneys are foreign agents under the 12 Foreign Agents Registration Act (“FARA”), 22 U.S.C. § 611, et seq., who must file proof 13 with the court of their right to represent Defendants. (See Resp. at 8-9.) FARA requires 14 that agents who lobby in the United States on behalf of “a foreign principal” to disclose 15 their affiliation. See Viereck v. United States, 318 U.S. 236, 237 (1943); Rabinowitz v. 16 Kennedy, 376 U.S. 605, 608-10 (1964). This statute has no bearing on this litigation and 17 provides Ms. Robinson with no basis for avoiding the dismissal of her amended 18 complaint. 19 Finally, Ms. Robinson asserts that the court should deny Defendants’ motions to 20 dismiss because the statements by Defendants’ counsel are not evidence. Ms. Robinson 21 misapprehends the nature of a motion to dismiss based on Rule 12(b)(6). Such motions 22 are directed to the sufficiency of the pleading at issue. The issue at this stage of the ORDER - 18 1 litigation is not what evidence the parties have adduced, but rather whether Ms. 2 Robinson’s amended complaint sufficiently states a claim for relief. In short, Ms. 3 Robinson’s amended complaint fails to plead any claim for relief and fails as a matter of 4 law to show any reason why nonjudicial foreclosure should not proceed with respect to 5 the Property or that Defendants acted wrongfully in any way. Accordingly, the court 6 grants Defendants’ motions to dismiss Ms. Robinson’s amended complaint. 7 E. Leave to Amend 8 Although the court grants both Moving Defendants’ and BANA’s motions to 9 dismiss in total, the court must also consider whether to grant Ms. Robinson leave to 10 amend. Leave to amend is mandatory for pro se plaintiffs unless it is absolutely clear 11 that amendment could not cure the defects. Lucas v. Dep’t of Corr., 66 F.3d 245, 248 12 (9th Cir. 1995) (per curiam). In determining whether dismissal without leave to amend is 13 appropriate, courts consider such factors as undue delay, bad faith or dilatory motive on 14 the part of the movant, repeated failure to cure deficiencies by amendments previously 15 allowed, undue prejudice to the opposing party from allowing the amendment, and 16 futility of amendment. Foman v. Davis, 371 U.S. 178, 182 (1962). Of these factors, 17 “prejudice to the opposing party . . . carries the greatest weight.” Eminence Capital, LLC 18 v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003). A proposed amendment is futile “if 19 no set of facts can be proved under the amendment to the pleadings that would constitute 20 a valid and sufficient claim or defense.” Miller v. Rykoff-Sexton, Inc., 845 F.2d 209, 214 21 (9th Cir. 1988). Further, “[t]he district court’s discretion to deny leave to amend is 22 ORDER - 19 1 particularly broad where plaintiff has previously amended the complaint.” Ascon Props., 2 Inc. v. Mobil Oil Co., 866 F.2d 1149, 1160 (9th Cir. 1989). 3 In this instance, the court declines to grant leave to amend. Based on the publicly 4 recorded documents before the court, which relate to the chain-of-title on the Property 5 and foreclosure proceedings initiated against the Property, the court concludes that any 6 amendment to Ms. Robinson’s claims concerning the attempted foreclosure on the 7 Property would be futile. Further, the court already granted Ms. Robinson an opportunity 8 to amend her complaint in response to BANA’s first motion to dismiss, but she 9 nevertheless failed to state a claim against any Defendant. (See Compl.; 1st BANA 10 MTD; 4/4/17 Order; FAC.) In addition, Ms. Robinson does not ask for leave to further 11 amend in her response to Defendants’ motions to dismiss or provide any explanation as to 12 how she could revise her complaint to state a claim against any Defendant. (See 13 generally Resp.) Under these circumstances, the court concludes that providing Ms. 14 Robinson another opportunity to amend her complaint would be futile. 15 IV. CONCLUSION 16 Based on the foregoing analysis, the court GRANTS Moving Defendants’ and 17 BANA’s motions to dismiss (Dkt. ## 19, 22), DISMISSES Ms. Robinson’s amended 18 complaint with prejudice, and DENIES leave to amend. As noted above, the court 19 liberally construes Ms. Robinson’s motion to intervene (Dkt. # 24) as response to 20 // 21 // 22 // ORDER - 20 1 Defendants’ motions to dismiss and therefore DIRECTS the Clerk to remove this filing 2 from the court’s motions calendar. 3 Dated this 25th day of May, 2017. 4 5 A 6 JAMES L. ROBART United States District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 ORDER - 21

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?