Tuck et al v. Mortgage Electronic Registration Systems Inc et al
Filing
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ORDER granting 6 Defendants' Motion to Dismiss; denying 12 Plaintiffs' Motion for TRO. This matter is Dismissed With Prejudice. Signed by Judge Ronald B. Leighton.(DN) Modified on 8/12/2011 (DN). (Copy mailed to plaintiffs.)
HONORABLE RONALD B. LEIGHTON
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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA
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JONATHAN B. TUCK & DANIEL P. TUCK,
Plaintiffs,
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No. CV11-5236RBL
v.
MORTGAGE ELECTRONIC
REGISTRATION SYSTEMS, INC., et al.,
ORDER DENYING MOTION FOR TRO
AND GRANTING MOTION TO
DISMISS
[Dkt. #s 6 & 12]
Defendants.
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This matter is before the court on the Plaintiffs’ Motion for a Temporary Restraining
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Order [Dkt. #12], and Defendants’ Motion to Dismiss [Dkt. #6]. Plaintiff seeks to enjoin the
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Defendants from pursuing foreclosure on their Property. Plaintiffs’ Complaint and Motion claim
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a variety of improprieties and violations in the manner in which the Defendants acquired and
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seek to foreclose on their Note and Deed of Trust. Defendants claim that the Complaint is a
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stock,” perhaps internet-sourced, pro se complaint which has been filed, unsuccessfully, in
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various courts (including this one) by in-default debtors facing foreclosure.
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Plaintiffs claim to be the party of record with exclusive possessory rights to Property
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commonly known as 10170 McKinley Avenue East, Tacoma, WA, 98445. They admit they
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borrowed $240,000 to purchase the property in 2005, but allege that they were unfamiliar with
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the loan documents and that the lenders ‘took advantage of them.” As a result, they claim, they
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do not owe the lenders anything. The Defendants apparently contend Plaintiffs owe almost
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$40,000 in past due payments on the loan. Plaintiffs seek a ruling from the court that they are not
ORDER - 1
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in default and that the foreclosure process was flawed. The court’s docket does not reflect that
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Plaintiffs filed or served any summons with their Complaint, and the “Certificate of Service”
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incorporated into it alleges only that he Compliant was mailed to the Defendants.
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Defendants seeks Dismissal of the plaintiffs’ Complaint with prejudice under Rule
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12(b)(6), or, alternatively, Rule 12(b)(5)(insufficiency of service of process). Defendants argue
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that Plaintiffs have failed to make any factual allegations supporting any claim for relief,
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including the Complaint’s inherent claim of fraud or wrong-doing in connection with the
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foreclosure. They argue, persuasively, that the Plaintiffs’ claims are not plausible in the face of
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the documents they rely upon and in the face of Washington law. They argue further that
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amendment would be futile and that Complaint should be dismissed without leave to amend.
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Plaintiffs’ Motion [Dkt. #12] contains the following general and conclusory contentions:
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They have not defaulted on the subject loan.
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They will be irreparably harmed by foreclosure.
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They are likely to prevail on the merits of their complaint.
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The Public has an interest in exposing fraud and attorney misconduct.
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The hardship of enjoining the sale on the Defendants is not nearly as great as the
hardship to the Plaintiffs in allowing the foreclosure.
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Defendants have altered the deed of trust document.
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Defendant Northwest Trustee services (NWTS) has “never been appointed.”
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Discussion.
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1. Standard for Dismissal under fed. R. Civ. P. 12(b)(6).
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Dismissal under Rule 12(b)(6) may be based on either the lack of a cognizable legal
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theory or absence of sufficient facts alleged under a cognizable legal theory. Balistreri v.
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Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). A plaintiff’s complaint must allege
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facts to state a claim for relief that is plausible on its face. See Ashcroft v. Iqbal, 129 S.Ct. 1937,
1949 (2009). A claim has “facial plausibility” when the party seeking relief “pleads factual
ORDER - 2
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content that allows the court to draw the reasonable inference that the defendant is liable for the
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misconduct alleged.” Id. Although the Court must accept as true the Complaint’s well-pled facts,
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conclusory allegations of law and unwarranted inferences will not defeat an otherwise proper
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[Rule 12(b)(6)] motion. Vasquez v. L. A. County, 487 F.3d 1246, 1249 (9th Cir. 2007); Sprewell
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v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). “[A] plaintiff’s obligation to
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provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions,
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and a formulaic recitation of the elements of a cause of action will not do. Factual allegations
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must be enough to raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly,
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550 U.S. 544, 555 (2007) (citations and footnote omitted). This requires a plaintiff to plead
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“more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Iqbal, 129 S.Ct. at
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1949 (citing Twombly).
2. Standard for Obtaining a Temporary Restraining Order.
The purpose of a TRO is “preserving the status quo and preventing irreparable harm just
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so long as is necessary to hold a hearing [on the preliminary injunction application], and no
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longer.” Granny Goose Foods, Inc. v. Brotherhood of Teamsters & Auto Truck Drivers, 415
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U.S. 423 (1974); see also Reno Air Racing Ass’n v. McCord, 452 F.3d 1126, 1130-31 (9th Cir.
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2006). To obtain a TRO or a preliminary injunction, the moving party must show: (1) a
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likelihood of success on the merits; (2) a likelihood of irreparable harm to the moving party in
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the absence of preliminary relief; (3) that a balance of equities tips in the favor of the moving
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party; and (4) that an injunction is in the public interest. Winter v. Natural Res. Def. Council,
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Inc., ___ U.S. ___, 129 S. Ct. 365, 376 (2008).
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Traditionally, injunctive relief was also appropriate under an alternative “sliding scale”
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test. The Lands Council v. McNair, 537 F.3d 981, 987 (9th Cir. 2008). However, the Ninth
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Circuit overruled this standard in keeping with the Supreme Court’s decision in Winter.
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American Trucking Ass’ns Inc. v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009)
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(holding that “[t]o the extent that our cases have suggested a lesser standard, they are no longer
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controlling, or even viable”).
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As an initial matter, Plaintiffs have failed as a matter of law to establish their right to a
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Temporary Restraining Order. Plaintiffs can establish the element of irreparable harm. But they
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have not met, and cannot meet, their burden of establishing that the remaining factors weigh in
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favor of a TRO.
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Because the Plaintiffs are proceeding pro se, the Court extends some latitude to their
pleadings. Nevertheless, the bulk of Plaintiffs’ arguments appear to rest on the purely
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conclusory allegation that the Defendants did not follow the strictures of Chapter 61.24 RCW in
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initiating the foreclosure, and that as a result the Plaintiffs are somehow not obligated to repay
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the purchase money they admit they borrowed. Moreover, as this Court has concluded
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previously, courts “have routinely held that [a defendants’] so-called ‘show me the note’
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argument lacks merit.” Freeston v. Bishop, White & Marshall, P.S., 2010 WL 1186276 (W.D.
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Wash. 2010) (quoting Diessner v. Mortgage Electronic Registration Systems, 618 F. Supp. 2d
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1184, 1187 (D. Ariz. 2009) (collecting cases)).
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The Plaintiffs have not established any remote likelihood of success on the merits of their
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claims. It appears from Plaintiffs’ own filings that they have not paid on the mortgage; they
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claim instead that the Defendants’ conduct has obviated the obligation for them to do so. But the
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Plaintiffs have not articulated, much less demonstrated, what the defendants did wrong, and they
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have failed to show how any such error would have the effect of relieving the Plaintiffs of the
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obligation to repay their debt.
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Nor have the Plaintiffs met their burden of establishing that the balance of equities tips in
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their favor. They have alleged hardship (a separate element) but have not even addressed how
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the equities are in their favor. They do allege sweat equity” in the property, but that is not an
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equitable factor and it does not trump the loan contract they admit they signed and failed to
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perform. On the other hand, the plaintiffs have apparently been in possession of a home they
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have not paid for, for some period of time. The balance of equities tips in favor of Defendants.
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The final factor is the public interest. While it is perhaps true that the public has an
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interest in exposing and preventing fraud and attorney misconduct, Plaintiffs have made no
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showing whatsoever that either of those things occurred in this case. And it is clear that the
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public has a broad interest in resolving the unfortunately vast array of in-default loans adversely
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affecting every bank in the country. Enjoining facially legitimate foreclosure sales is not in the
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public interest; in fact, just the opposite is true.
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The Plaintiffs have not met their burden to obtain a TRO. Their Motion [Dkt. #12] for
such relief is therefore DENIED.
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For the same reasons, the Plaintiffs complaint fails to establish a plausible claim for relief
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under the Rule 12(b)(6) and Twombly/Iqbal standard. The Defendants’ Motion to Dismiss [Dkt.
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#6] under that Standard is GRANTED. Additionally, the Plaintiffs have not effected proper
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service of process under Rule 4. The Motion to Dismiss under Rule 12(b)(5) [Dkt. #6] is
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therefore also GRANTED.
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The final question is whether the Dismissal should be with or without prejudice. On a
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12(b)(6) motion, “a district court should grant leave to amend even if no request to amend the
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pleading was made, unless it determines that the pleading could not possibly be cured by the
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allegation of other facts.” Cook, Perkiss & Liehe v. N. Cal. Collection Serv., 911 F.2d 242, 247
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(9th Cir. 1990). However, where the facts are not in dispute, and the sole issue is whether there is
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liability as a matter of substantive law, the court may deny leave to amend. Albrecht v. Lund, 845
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F.2d 193, 195-196 (9th Cir. 1988).
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It does not appear that Plaintiffs could amend their complaint, consistent with the
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allegations they have already made and with the documents in the record, to assert viable claims
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against the Defendants.
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The Plaintiffs’ Complaint is therefore DISMISSED WITH PREJUDICE.
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IT IS SO ORDERED.
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Dated this 12th day of August, 2011.
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A
RONALD B. LEIGHTON
UNITED STATES DISTRICT JUDGE
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