ORDER

JAMES A. TEILBORG, District Judge.

Pending before the Court are Defendant Countrywide Bank, FSB's Motion to Dismiss (MDL 09-2119, Doc. 1616) and Defendant Mortgage Electronic Systems Inc.'s Motion to Dismiss (MDL 09-2119, Doc. 1627). The Court now rules on the Motions.

I. FACTUAL BACKGROUND

On or about July 25, 2007, Plaintiff executed a promissory note in the amount of $728,000,000, in connection with a loan from Aegis Wholesale Corporation ("Aegis"). (CV 11-173, Doc. 1-1 at 5, 14). The promissory note was secured by a Mortgage recorded against the property located at 954 Alewa Drive, Honolulu, Hawai'i 96817 (the "Property"). (Id.). MERS, as nominee for Aegis, was named the beneficiary under the Mortgage. (Id. at 5, 22).

Based on Plaintiff's default on loan payments, on December 18, 2008, MERS, as nominee for Aegis, noticed a sale of the Property to take place on February 9, 2009. (Id. at 5, 39). Plaintiff alleges that the Notice of Sale was defective because: (1) Jason Cotton, who signed the Notice of Sale, as Assistant Secretary of MERS was not the Assistant Secretary of MERS and his signature on the Notice of Sale was falsely notarized by Hillary Cotton, who had full knowledge that Jason Cotton was not the Assistant Secretary of MERS. (Id. at 5); (2) MERS has no legal or beneficial interest in the Property as nominee under the Mortgage and has no authority to sell the Property. (Id.); (3) Aegis was in bankruptcy at the time of the sale, which terminated all prepetition rights of nominees, such as MERS. (Id.).; and (4) the Notice unlawfully instructed prospective bidders that the successful bidder must deposit the full amount of the purchase price within twenty-one days of the auction in order to be able to close within thirty days of the auction. (Id. at 5-6).

On March 6, 2009, MERS, as Grantor, transferred the Property to CW, as Grantee, by a Quitclaim Deed. Plaintiff alleges that the Quitclaim Deed was defective because Kevin A. Durham, who signed as Assistant Secretary of MERS, was not the Assistant Secretary of MERS and the Quitclaim Deed was falsely notarized. (Id. at 6).

When Plaintiff refused to vacate the Property, CW filed a formal Complaint for Ejectment. (Id. at 6-7). After securing an interim Writ of Ejectment and taking possession of the Property, CW dismissed the action without prejudice. (Id. at 7). Plaintiff alleges that, at the time of the sale, the Property had a market value of $704,000, but was sold for $560,000. (Id.).

Plaintiff alleges wrongful foreclosure (Count One) and unfair and deceptive acts and practices in violation of Hawai'i Revised Statutes sections 667-5, 667-5.7, 480-13, and 480-13.5 (Count Three). As relief, Plaintiff seeks injunctive relief (Count Four), punitive damages (Count Five), and an accounting by MERS and Countrywide of all monies collected and taken as a result of unlawful judicial foreclosures (Count Six). (Id. at 7-10).

II. PROCEDURAL BACKGROUND

In October 2010, Plaintiff Juanita Faye Pualani Lee ("Plaintiff" or "Lee") filed a Class Action Complaint against Mortgage Electronic Systems, Inc. ("MERS") and Countrywide Bank, FSB ("Countrywide") in the Circuit Court of the First Circuit of Hawai'i. (CV 11-173, Doc. 1-1). MERS removed the suit to the United States District Court for the District of Hawai'i. (MDL 09-2119, Doc. 1616 at 3). In January 2011, the Judicial Panel on Multidistrict Litigation transferred the lawsuit to this Court for inclusion in the MERS Multidistrict Litigation. (Id.). In October 2011, this Court remanded Count Two and part of Count Six of Plaintiff's Complaint to the District of Hawai'i because those claims did not turn on the formation or operation of MERS. (MDL 09-2119, Doc. 1601). Defendants Countrywide and MERS (collectively "Defendants")1 now move to dismiss the remaining Counts of Plaintiff's Complaint.2

III. LEGAL STANDARD

To survive a Rule 12(b)(6) motion for failure to state a claim, a complaint must meet the requirements of Rule 8. Rule 8(a)(2) requires a "short and plain statement of the claim showing that the pleader is entitled to relief," so that the defendant has "fair notice of what the . . . claim is and the grounds upon which it rests." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).

Although a complaint attacked for failure to state a claim does not need detailed factual allegations, the pleader's obligation to provide the grounds for relief requires "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id. (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). The factual allegations of the complaint must be sufficient to raise a right to relief above a speculative level. Id.

Rule 8's pleading standard demands more than "an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 555). A complaint that offers nothing more than blanket assertions will not suffice. To survive a motion to dismiss, a complaint must contain sufficient factual matter, which, if accepted as true, states a claim to relief that is "plausible on its face." Id. Facial plausibility exists if the pleader pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Id. Plausibility does not equal "probability," but plausibility requires more than a sheer possibility that a defendant has acted unlawfully. Id. "Where a complaint pleads facts that are `merely consistent' with a defendant's liability, it `stops short of the line between possibility and plausibility of entitlement to relief.'" Id. (quoting Twombly, 550 U.S. at 557). In deciding a motion to dismiss under Rule 12(b)(6), the Court must construe the facts alleged in a complaint in the light most favorable to the drafter of the complaint, and the Court must accept all well-pleaded factual allegations as true. Shwarz v. United States, 234 F.3d 428, 435 (9th Cir. 2000). Nonetheless, the Court does not have to accept as true a legal conclusion couched as a factual allegation, Papasan, 478 U.S. at 286, or an allegation that contradicts facts that may be judicially noticed by the Court, Shwarz, 234 F.3d at 435.

IV. ANALYSIS

In their Motions to Dismiss,3 Defendants argue that all Counts of Plaintiff's Complaint should be dismissed. In Response, Plaintiff acknowledges that the Counts in her Complaint for injunctive relief (Count Four), punitive damages (Count Five), and an accounting (Count Six) are purely subsidiary claims for relief that she alleges she is entitled to as a result of the wrongful foreclosure alleged in Count One and unfair and deceptive acts and practices in violation of Hawai'i Revised Statutes sections 667-5.7 alleged in Count Three. Because Plaintiff will only be entitled to the relief in Counts 4-6 if she is successful on Counts One and Three, the Court will determine whether Plaintiff has stated a claim upon which relief can be granted in Counts One and Three of her Complaint.4

Plaintiff alleges that she is entitled to reversal of the nonjudicial foreclosure of the Property because (1) the sale of the property was conducted in violation of Hawai'i Revised Statutes section 667-5.7 and (2) MERS foreclosed on the property although it lacked standing to foreclose and fraudulently signed a quitclaim deed on behalf of Aegis Wholesale Corporation while Aegis was in bankruptcy.

A. Violations of Hawai'i Revised Statutes section 667-5.7

Plaintiff alleges that the notice of foreclosure that issued after she defaulted on her mortgage payment violated section 667-5.7 because it required the successful purchaser of the property to pay the full purchase price within 21 days of the public sale.

Section 667-5 provides, "At any public sale pursuant to section 667-5, the successful bidder at the public sale, as the purchaser, shall not be required to make a downpayment to the foreclosing mortgagee of more than ten per cent of the highest successful bid price." Haw. Rev. Stat. Ann. § 667-5.7.

Defendants argue that Plaintiff's claims related to violations of section 667-5.7 should be dismissed because the requirement to pay the full purchase price within 21 days of the public sale does not violate section 667-5.7's prohibition against requiring more than a 10% downpayment "at any public sale." Although the Hawai'i state courts do not appear to have addressed this issue directly, Defendants cite to various cases from the District Court of Hawai'i to support their argument that requiring full payment within 21 days of the public sale does not violate section 667-5.7.

In Saiki v. LaSalle Bank Nat'l Ass'n, No. 10-00085 JMS/LEK, 2011 WL 601139 (D. Haw. Feb. 10, 2011), the Hawai'i District Court considered a plaintiff's argument that Section 667-5.7 is violated when full payment is required within 21 days of public sale and held,

Saiki v. LaSalle Bank Nat'l Ass'n, 2011 WL 601139, at * 5. This Court agrees with and adopts the Saiki court's reasoning. On its face, the statute clearly prohibits requiring more than a ten percent down payment at the public sale. To read a further limitation into the statute that a mortgagee cannot require the successful bidder to pay more than a 10% down payment at any time thereafter would add an additional clause to the statute that simply does not exist.5

Plaintiff disagrees with the Hawai'i District Court's interpretation of section 667-5.7 and argues that the legislative history of that section and public policy considerations support her interpretations of section 667-5.7. The Hawai'i District Court has also addressed Plaintiff's interpretations of section 667-5.7 and the legislative history of section 667-5.7 and has concluded that Plaintiff's arguments are without merit.6 This Court agrees. Accordingly, Plaintiff's claims relating to section 667-5.7 are dismissed for failure to state claims upon which relief can be granted.

B. Claims Based on MERS's Standing to Foreclose

Plaintiff argues that the MERS could not initiate foreclosure proceedings on the Property because MERS lacked standing to do so. MERS, as nominee for Aegis, noticed the sale of the Property. In the Mortgage that Plaintiff signed, MERS, as nominee for Aegis, was listed as the beneficiary. Accordingly, Plaintiff specifically agreed to and was on notice that MERS held legal title to the secured interests on the Property. See Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1034, 1042 (9th Cir. 2011) ("By signing the deeds of trust, the plaintiffs agreed to the terms and were on notice of the contents").

To support her argument that MERS lacks standing to foreclose, Plaintiff cites to various cases where MERS was required to produce a promissory note for a property before it could initiate foreclosure proceedings on that property. Such a showing is often required in judicial foreclosures or by statute. Plaintiff does not cite to any authority in Hawai'i, nor is the Court aware of any such authority, that requires that MERS prove "standing," through the production of a promissory note or otherwise, before it could initiate non-judicial foreclosure proceedings on the Property.

Accordingly, Plaintiff has failed to state a claim upon which relief can be granted based on her assertion that MERS lacked standing to foreclose on the Property.

C. Claims Based on MERS's allegedly Fraudulent Initiation of Foreclosure while Aegis was in Bankruptcy

Plaintiff next argues that MERS "illegally purported to exercise the real property rights of Aegis after Aegis filed bankruptcy and did so without the permission of Aegis' bankruptcy trustee, and without the approval of the federal bankruptcy court, constituting a criminal fraud upon the creditors of Aegis and a fraud upon the bankruptcy court," "and then recorded its bogus robo-signed assignment of mortgage at the Hawai'i State Bureau of Conveyances in violation of numerous state criminal and regulatory laws." (Doc. 1657 at 8). To the extent that the Court construes Plaintiff's claims relating to MERS's fraud on the bankruptcy court and violation of criminal statutes and regulatory laws as true, Plaintiff has failed to state any injury that is fairly traceable to these acts and, thus, lacks standing to assert these claims in this action.

"In essence the question of standing is whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues." Warth v. Seldin, 422 U.S. 490, 498 (1975). In resolving the issue of standing, courts are bound by a constitutionally imposed jurisdictional restraint in Article III of the United States Constitution, which limits the "judicial power" of the United States to the resolution of "cases" and "controversies." See Valley Forge Christian Coll. v. Ams. United for Separation of Church and State, Inc., 454 U.S. 464, 470-71 (1982). Courts have viewed the constitutionally imposed restraint found in Article III as requiring that, in order to have standing, the plaintiff must have suffered an "injury in fact." Id. at 473. To satisfy Article III's standing requirements, Plaintiff bears the burden of proving that (1) he has suffered "`an injury in fact' that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged act of defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision." Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 180-81 (2000) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)).

In this case, after Plaintiff defaulted on her loan obligations, MERS noticed a sale of the property, as nominee for Aegis. Plaintiff alleges that Aegis was in bankruptcy and, thus, any property Aegis owned was property of the bankruptcy estate and Aegis's creditors. Plaintiff appears to allege that MERS, as an agent for Aegis, was without authority to notice a sale of the Property because the Property belonged to the bankruptcy estate. At the outset, the Court notes that Plaintiff's claims that MERS was without authority to notice a sale of the Property are speculative. Any number of proceedings could have occurred in the bankruptcy case that would have allowed Aegis, and MERS, as Aegis's agent, to notice the sale of the Property.

Notwithstanding the speculative nature of these allegations, even if the bankruptcy Trustee was properly the party who should have noticed the sale to the Property, the Trustee of the bankruptcy estate, and not Plaintiff, would have suffered an injury that is traceable to MERS's "fraudulent notice of sale." If the bankruptcy Trustee, and not MERS, had noticed and proceeded with the sale of the Property, Plaintiff's alleged injury (the foreclosure of the Property) would still have occurred.

Because Plaintiff's allegations regarding MER's authority to notice the sale are speculative and Plaintiff has failed to allege how these allegedly fraudulent acts caused her injury or how the Court's decision on such claims could provide her relief in this action, Plaintiff lacks standing to assert MERS's alleged fraud on the bankruptcy court.7

V. LEAVE TO AMEND

Plaintiff does not request leave to amend. However, the Ninth Circuit has instructed district courts to grant leave to amend when dismissing a case for failure to state a claim, "unless the court determines that the pleading could not possibly be cured by the allegations of other facts." Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (quoting Doe v. United States, 58 F.3d 494, 497 (9th Cir.1995)). Because Plaintiff's claims depend on legal theories that have repeatedly been rejected by the District Court of Arizona, the District Court of Hawai'i, and the Ninth Circuit Court of Appeals, and in light of the foregoing analysis, the Court finds that Plaintiff's Amended Complaint could not be cured by allegations of other facts and, thus, allowing Plaintiff to amend would be futile. Accordingly, the Court will not grant Plaintiff leave to amend.

VI. CONCLUSION

Based on the foregoing,

IT IS ORDERED that Defendant Countrywide Bank, FSB's Motion to Dismiss (MDL 09-2119, Doc. 1616) is granted.

IT IS FURTHER ORDERED that Defendant Mortgage Electronic Systems Inc.'s Motion to Dismiss (MDL 09-2119, Doc. 1627) is granted.

The Clerk of the Court shall enter judgment for Defendants.

The Clerk of the Court shall file a copy of this Order in MDL 09-2119-PHX-JAT and CV 11-00173-PHX-JAT.