JAMES A. TEILBORG, District Judge.
Pending before the Court is Defendants' Motion to Dismiss Second Amended Complaint (Dkt. 36). Plaintiff has filed a Response (Dkt. 38) and Defendants have filed their Reply (Dkt. 39). The Court now rules on the Motion.
On or about January 9, 2007, Plaintiff obtained a loan for $240,000 from Bear Stearns. (Dkt. 31). The loan was secured by a Deed of Trust on the real property located at 4733 East Vernon Avenue, Phoenix, Arizona 85008 (the "Property"). (Id.). MERS, as nominee for Bear Stearns, was named the beneficiary under the Deed of Trust. (Id.).
MERS, as nominee for Bear Stearns, assigned the Deed of Trust to LaSalle, care of Ocwen. (Id.). The Assignment of Deed of Trust was "made and entered into as of the 01st of August, 2007," executed on May 18, 2009, and recorded on June 1, 2009, in the Official Records of Maricopa County, Arizona. (Id.).
On February 10, 2009, a Notice of Substitution of Trustee was recorded, in which Ocwen, on behalf of LaSalle, appointed Christopher R. Perry as the successor trustee under the Deed of Trust. (Id.). Immediately thereafter, Perry recorded a Notice of Trustee's Sale. (Id.). The Trustee's Sale of the Property was originally scheduled for May 12, 2009. (Id.).
In her Complaint, Plaintiff admits that she defaulted on her loan and her loan payments were not current at the time the power of sale provisions in the Deed of Trust were invoked by the beneficiary under the Deed of Trust. (Dkt. 34 at 6).
On October 12, 2010, Plaintiff filed a Complaint in the Superior Court for Maricopa County, Arizona. (Id.). The Complaint set forth four counts: injunctive relief, declaratory relief, breach of contract, and payment/cancellation of mortgage loan. (Id.).
On November 29, 2011, Defendants removed the state court action to federal court on the basis of diversity jurisdiction, pursuant to 28 U.S.C. § 1332. (Id.). The Court subsequently denied Plaintiff's motion to remand. (Id.).
On June 24, 2011, this Court dismissed Plaintiff's original Complaint. (Id.). The Court found that Plaintiff failed to meet the pleading standard set forth in Federal Rules of Civil Procedure 8 and directed that if Plaintiff amended her Complaint, she should "make clear her allegations in short plain statements in the manner required in Rule 8" and cautioned Plaintiff not to simply re-allege her failed claims. (Id.).
Defendants Ocwen Loan Servicing, LLC, Bank of America, National Association as Successor by Merger to LaSalle Bank National Association, as Trustee for the Registered Holders of Bear Stearns Asset Backed Securities I Trust 2007-HE4 Asset-Backed Certificates, Series 2007-HE4 and Mortgage Electronic Registration Systems, Inc. (hereinafter "Defendants")
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, ___, 129 S.Ct. 1937, 1949 (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." Iqbal, 129 S. Ct. at 1949. 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). Because Plaintiff is proceeding pro se, the Court must construe her Amended Complaint liberally, even when evaluating it under the Iqbal standard. Johnson v. Lucent Technologies Inc., 653 F.3d 1000, 1011 (9th Cir. 2011).
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.
Plaintiff seeks to have the Trustee's Sale that took place on February 9, 2009 cancelled and the Trustee's Deed Upon Sale that was executed December 21, 2010 declared void. Plaintiff also seeks to have the MERS' assignment of the Deed of Trust declared void. Plaintiff relies on three theories as to why she is entitled to such relief: (1) "as a matter of law, recourse through foreclosure was not a legal option;" (2) breach of contract based upon failure to provide notice of default, in violation of the terms of the Deed of Trust; and (3) "the Notice of Substitution of Trustee was defective and all succedent documents and actions in foreclosure based upon that substitution were invalid as a matter of course."
Defendants assert that Plaintiff's Amended Complaint not only fails to meet the pleading standard of Rule 8, but fails to state a claim upon which relief can be granted. The Court agrees.
Plaintiff's Amended Complaint again fails to meet the pleading standard set forth in Federal Rules of Civil Procedure 8. As this Court noted in its previous Order granting dismissal of Plaintiff's original Complaint, "[s]omething labeled a complaint but written more as a press release, prolix in evidentiary detail, yet without simplicity, conciseness and clarity as to whom plaintiffs are suing for what wrongs, fails to perform the essential functions of a complaint." McHenry v. Renne, 84 F.3d 1172, 1180 (9th Cir. 1996). "Prolix, confusing complaints ... impose unfair burdens on litigants and judges." Id. at 1179.
Plaintiff has again failed to identify which Defendants committed what wrongs and again fills her Amended Complaint with speculative legal conclusions and repetitive arguments. Further, Plaintiff has again included allegations against entities not named as Defendants.
Defendants assert that Plaintiff has failed to state a claim upon which relief can be granted for three reasons: (1) Plaintiff waived her claims by failing to obtain an injunction prior to the Trustee's Sale; (2) Plaintiff is judicially estopped from bringing her claims because her claims were not listed as assets in her bankruptcy proceeding; and (3) Plaintiff's claims fail, as a matter of law, because the foreclosure documents are lawful. Because the Court agrees that Plaintiff waived her claims by failing to obtain an injunction prior to the Trustee's Sale, the Court will not address Defendants' other arguments.
Defendants argue that under Arizona Revised Statutes ("A.R.S.") § 33-811(C), Plaintiff has waived her right to object to the sale because she did not obtain injunctive relief prior to the sale.
There is no doubt that Plaintiff received notice of the Trustee Sale pursuant to § 33-809. Plaintiff attached a copy of the Notice (dated February 9, 2009) as Exhibit D to her original Complaint, dated October 12, 2010 (Dkt. 1-1). The Trustee Sale did not occur until December 20, 2010. Because Plaintiff received notice of the Trustee Sale pursuant to §33-809, she waived all defenses and objections to the Trustee Sale not raised in an action resulting in injunctive relief awarded at least one business day before the Trustee Sale. See Coleman v. Am. Home Mortg. Servicing, Inc., No. CV 09-2692 PHX DGC, 2010 WL 1268141, at *4 (D. Ariz. March 30, 2010).
Plaintiff argues that A.R.S. § 33-809 should not apply to her because she requested a "mandatory injunction" in her original Complaint filed with the Maricopa County Superior Court on October 12, 2010. She argues that she was not granted the injunction because the action was removed to this Court on November 29, 2010. Plaintiff did not file a Rule 65 motion in state court, nor did she file a motion for preliminary injunction in this Court. Plaintiff seems to argue that the request in her original Complaint "for a judgment in the nature of a mandatory injunction" is a Rule 65 Motion. However, the Court does not need to decide whether that request could somehow operate as a Rule 65 motion
In her Amended Complaint, Plaintiff first argues that, as a matter of law, recourse through foreclosure was not a legal option because MERS could not legally have been a beneficiary of the trust deed and cannot legally assign a mortgage deed to a third party. Plaintiff argues that, because of this, MERS' transfer to LaSalle Bank National Association was improper and thus, LaSalle could not legitimately foreclose on Plaintiff because "it failed to obtain a legitimate transfer of title properly endorsed by the original lender." Success on this theory would have provided a defense to the sale of the Trust Property. Accordingly, Plaintiff has waived this defense by failing to obtain relief pursuant to Rule 65.
Plaintiff's second argument is that Defendant Perry did not provide her with notice of default as required by the Trust Deed and therefore, the sale was a breach of contract and the foreclosure should be declared null and void. Again, if Plaintiff were successful on this theory, it would have been a defense to the sale of the Trust Property and is waived because Plaintiff did not obtain relief pursuant to Rule 65.
Plaintiff finally argues that the Notice of Substitution of Trustee was defective and all succedent documents and actions in foreclosure based upon that substitution were invalid as a matter of course. If Plaintiff were successful on this theory, it would have been a defense to the sale of the Trust Property and is waived because Plaintiff did not obtain relief pursuant to Rule 65.
Because all of Plaintiff's arguments are defenses and/or objections to the Trustee Sale, Plaintiff has waived them. Accordingly, the Motion to Dismiss will be granted. Morever, the Court finds that granting Plaintiff leave to amend her Complaint a second time would be futile because amendment could not cure her failure to obtain injunctive relief before the Trustee Sale.
As noted above, Defendants the Law Offices of Shapiro, VanEss & Sherman, LLP, Christopher R. Perry, and Keri Sheehan have not been served in this case and thus have not filed a motion to dismiss the claims against them. However, dismissal against all Defendants is appropriate, where, as here, the non-responding Defendants are in a position similar to the moving Defendants. See Abagninin v. AMVAC Chem. Corp., 545 F.3d 733, 743 (9th Cir. 2008) ("A [d]istrict [c]ourt may properly on its own motion dismiss an action as to defendants who have not moved to dismiss where such defendants are in a position similar to that of moving defendants.") (internal citations omitted). Plaintiff has waived all of her claims for failure to obtain injunctive relief before the Trustee Sale. This waiver applies 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."). equally to all claims, regardless as to which Defendants they are asserted against. Accordingly, the Court shall dismiss Plaintiff's claims against all Defendants.
Based on the foregoing,
