Nguyen v. Recontrust Company, N.A. et al

Filing 11

ORDER granting 9 Partial Motion to Dismiss Claims. Plaintiff's claims 1 - 9 are Dismissed With Prejudice. Signed by Judge Ronald B. Leighton.(DN) Modified on 1/6/2012 (DN). (Copy mailed to plaintiff.)

1

THE HONORABLE RONALD B. LEIGHTON

2
3
4
5
6
7

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

8
9
10
11
12
13
14

VAN NGUYEN,

)
)
Plaintiff, )
)
v.
)
)
RECONTRUST COMPANY, N.A.; BAC
)
HOME LOANS SERVICING, L.P.,
)
)
Defendants. )
)

No. 11-cv-5642 RBL
ORDER GRANTING
DEFENDANTS’ PARTIAL MOTION
TO DISMISS

15
16

This matter is before the Court on Defendants’ Partial Motion to Dismiss [Dkt. #9].

17

Defendants argue that causes of action Nos. 1 through 9 in Plaintiff’s Complaint are

18

insufficient as a matter of law and should be dismissed without leave to amend. Plaintiff has

19

filed no Response of any kind to the Motion.

20

The case involves an in-default debtor seeking to prevent a pending non-judicial

21
foreclosure on his home. The Defendants are the various players in the loan and foreclosure
22
23

processes. In this case, the Plaintiff is pro se. He alleges a wide variety of claims based on the

24

fact that his loan was securitized, that it is not clear to him who actually owns the Note or his

25

Deed of Trust, that the two documents were separated, and other claims about the legal

26

consequences of the organization and operation of the mortgage lending industry. These claims

27

are typical of those often raised by homeowners in plaintiff’s position.
ORDER - 1

1

Plaintiff specifically asserts the following claims:

2

1.

3

Disparity

2. Breach of Contract

4
3. Equitable estoppel
5
6

4. Erroneous Credit reporting

7

5. Foreclosure of incorrect note

8

6. Forfeiture on Foreclosure (dealing with the tax consequences of foreclosure)

9

7. Recoupment and setoff

10
11

8. False claim – failed endorsement
9. Erroneous alleged default

12
13

10. Violations of the Washington Deed of Trust Act

14

11. Slander of title

15

12. Declaratory relief, and

16

13. Injunction.

17

Though defendants argue persuasively that the entire complaint is insufficient, they seek

18

only dismissal of the claims enumerated as 1-9, above. Defendants seek Dismissal without

19
leave to amend, arguing that any amendment would be futile.
20
21

Plaintiff has failed to respond to the Motion in any fashion.

22

Dismissal under Rule 12(b)(6) may be based on either the lack of a cognizable legal theory or

23

absence of sufficient facts alleged under a cognizable legal theory. Balistreri v. Pacifica Police

24

Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). A plaintiff’s complaint must allege facts to state a

25

claim for relief that is plausible on its face. See Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009).

26

A claim has “facial plausibility” when the party seeking relief “pleads factual content that

27
ORDER - 2

1

allows the court to draw the reasonable inference that the defendant is liable for the misconduct

2

alleged.” Id. Although the Court must accept as true the Complaint’s well-pled facts,

3

conclusory allegations of law and unwarranted inferences will not defeat an otherwise proper

4
[Rule 12(b)(6)] motion. Vasquez v. L. A. County, 487 F.3d 1246, 1249 (9th Cir. 2007); Sprewell
5
6

v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). “[A] plaintiff’s obligation to

7

provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions,

8

and a formulaic recitation of the elements of a cause of action will not do. Factual allegations

9

must be enough to raise a right to relief above the speculative level.” Bell Atl. Corp. v.

10

Twombly, 550 U.S. 544, 555 (2007) (citations and footnote omitted). This requires a plaintiff to

11

plead “more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Iqbal, 129

12
13

S.Ct. at 1949 (citing Twombly).

14

Leave to amend shall be freely given when justice so requires. Fed. R. Civ. P. 15(a). “If

15

the underlying facts or circumstances relied upon by a plaintiff may be a proper subject of

16

relief, he ought to be afforded an opportunity to test his claim on the merits.” Foman v. Davis,

17

371 U.S. 178, 182 (1962). On a 12(b)(6) motion, “a district court should grant leave to amend

18

even if no request to amend the pleading was made, unless it determines that the pleading could

19
not possibly be cured by the allegation of other facts.” Cook, Perkiss & Liehe v. N. Cal.
20
21

Collection Serv., 911 F.2d 242, 247 (9th Cir. 1990). However, where the facts are not in

22

dispute, and the sole issue is whether there is liability as a matter of substantive law, the court

23

may deny leave to amend. Albrecht v. Lund, 845 F.2d 193, 195-196 (9th Cir. 1988).

24
25

Under Local Rule 7(b)(2),”if a party fails to file papers in opposition to a motion, such
failure may be considered by the court as an admission that the motion has merit.”

26
27
ORDER - 3

1

Defendants’ Motion to Dismiss is well-taken, and Plaintiff’s claims are insufficient as a

2

matter of law under Rule 12(b)(6), for the reasons outlined in the Motion. The Court interprets

3

Plaintiff’s failure to respond as an admission of the same.

4
The Defendants’ Partial Motion to Dismiss [Dkt. #9] is therefore GRANTED, and
5
6

Plaintiff’s claims Nos. 1 - 9 are DISMISSED with prejudice.

7

IT IS SO ORDERED.

8

Dated this 6th day of January, 2012

9
10

12

A

13

RONALD B. LEIGHTON
UNITED STATES DISTRICT JUDGE

11

14
15
16
17
18
19
20
21
22
23
24
25
26
27
ORDER - 4