JAMES A. TEILBORG, District Judge.
Pending before the Court are: Defendant Quality Loan Service Corporation's Motion to Dismiss (Doc. 29), Defendants Citibank, N.A. and Bear Stearn's Mortgage Corporation's Motion to Dismiss (Doc. 30) and JP Morgan Chase Bank, N.A's Joinder thereto (Doc. 57), Plaintiff's Second Motion to Amend Complaint (Doc. 31), Plaintiff's Motion to Strike (Doc. 40), Plaintiff's First Motion to Clarify Preliminary Injunction Order (Doc. 79), and Plaintiff's First Motion for New Trial (Doc. 80). The Court now rules on the Motions.
In 2006, Plaintiff borrowed $544,000 through two separate loans. The loans were secured by Deeds of Trust on the real property located at 39658 N. Schnepf Road, Queen Creek, Arizona 85242 (the "Property"). MERS, as nominee for Bear Stearns, was named the beneficiary under the Deeds of Trust.
On January 14, 2008, a Notice of Substitution of Trustee was recorded, in which Quality Loan Service Corporation ("Quality Loan") was appointed successor Trustee. (Doc. 1-1 at 2). The same day, Quality Loan recorded a Notice of Trustee's Sale. (Id. at 4). That Trustee's Sale was postponed a number of times.
On August 24, 2011, Plaintiff filed a Complaint in this Court against Defendants. Thereafter, Plaintiff filed an application for a Temporary Restraining Order to enjoin the Trustee's Sale of the Property. Plaintiff argued that, when the original Trustee's Sale did not occur on April 24, 2008, Defendants failed to comply with Arizona Revised Statutes section 33-810(B) by not making the required declaration pertaining to the status of the Trustee's Sale on the noticed sale date.
Thereafter, Plaintiff filed an Amended Complaint (Doc. 20) and sought a preliminary injunction of the Trustee's Sale (Doc. 45). After Defendants certified that the Trustee's Sale of the Property was to occur on April 9, 2012, despite this Court's prior finding that the current Notice/Postponements were likely defective, this Court set a preliminary injunction hearing for March 21, 2012 at 10:00 a.m. (Doc. 55). After considering the evidence at the preliminary injunction hearing, the Court found that Plaintiff was unlikely to succeed on the merits of his claim that the Trustee's Sale was not properly postponed in accordance with Arizona Revised Statutes section 33-810(B), and, thus, the Court denied the motion for preliminary injunction. (Doc. 74).
On May 2, 2012, Defendants cancelled the Notice of Trustee's Sale recorded on January 14, 2008. (Doc. 88-1). Plaintiff responded to the Notice of Cancellation and asserted that a new Notice of Trustee's Sale was recorded the same day. (Doc. 89).
In his Amended Complaint (Doc. 20), Plaintiff alleges that (1) Defendants failed to comply with Arizona Revised Statutes sections 33-810(B) and 33-808(A)(3)
Defendants argue that Plaintiff's Amended Complaint should be dismissed because (1) Plaintiff has failed to state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6) and (2) Plaintiff's claims are barred by res judicata or collateral estoppel.
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). Because Plaintiff is proceeding pro se, the Court must construe his 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.
Defendants argue that Plaintiff's claims relating to Defendants' standing to conduct a Trustee's Sale and demanding that Defendants prove their standing by producing the note should be dismissed because Plaintiff's claims have been rejected by the Pinal County Superior Court and the Arizona Bankruptcy Court and are thus barred by the doctrine of res judicata. Defendants further argue that, even if these claims had not been rejected by two prior actions, they are not viable under Arizona law.
As the Pinal County Superior Court has already ruled on Plaintiff's standing and "show me the note" claims (Doc. 7-1 and Doc. 30-1), Plaintiff is barred by the doctrine of res judicata from asserting these claims in this action.
Even if res judicata did not apply to bar Plaintiff's standing and "show me the note" claims, Plaintiff has failed to state a claim upon which relief can be granted under Arizona law because nothing in the non-judicial foreclosure statutes imposes an obligation on the Bank or the Trustee to demonstrate their rights before a non-judicial foreclosure may proceed. See Hogan v. Washington Mutual Bank, N.A., 277 P.3d 781, 783 (Ariz. 2012). Accordingly, Defendants' Motions to Dismiss will be granted with respect to these claims.
The Court notes that the remainder of Plaintiff's Amended Complaint is premised on Defendants' failure to provide him the statutorily required Notice of Trustee's Sale pursuant to Arizona Revised Statutes sections 33-810(B) and 33-808(A)(3). Because Defendants have cancelled the original Trustee's Sale and have re-noticed the Trustee's Sale, Plaintiff's claims related to the prior Notice as defective are moot.
Because the only remaining claims in Plaintiff's Complaint are claims for injunctive relief that are necessarily dependant on Plaintiff's success on the merits of the claims in his Complaint, Plaintiff's claims for injunctive relief are also dismissed.
Based on the foregoing,
This case is dismissed with prejudice. The Clerk of the Court shall enter judgment for Defendants.
Ariz. Rev. Stat. Ann. § 33-810(B).
In his Motion to Clarify, Plaintiff seeks the status of the claims in his Complaint currently before the Court. Because a ruling on Defendants' Motions to Dismiss will clarify the status of Plaintiff's claims, Plaintiff's Motion to Clarify (Doc. 79) is denied as moot.
Plaintiff also file a "Motion for a New Trial" and to Alter and Amend the Judgment. (Doc. 80). The Court notes that a judgment has not been entered in this case. Further, a trial has not occurred. Plaintiff's Motion for a New Trial is essentially another Motion for a Preliminary Injunction hearing and Plaintiff again seeks reconsideration of this Court's Order denying his motion for preliminary injunction.
Plaintiff argues that this Court should reconsider its prior Order because the facts it relied on are "blatantly contrary" to the Court record. Plaintiff also argues that "testimony, exhibits and evidence denied Plaintiff by the Court were denied out of undue prejudice by the Court to the Plaintiff." The Court finds no merit to these claims. Accordingly, Plaintiff's Motion for New Trial to Alter and Amend the Judgment (Doc. 80) is denied.
Ariz. Rev. Stat. Ann. § 33-808(A)(3).
The Court notes that Plaintiff also appears to argue that the Court cannot take judicial notice of his previous cases in bankruptcy court and Pinal County Superior Court for the purposes of considering Defendants' res judicata arguments. This argument is without merit. See Reyn's Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n.6 (9th Cir. 2006) (the Court "may take judicial notice of court filings and other matters of public record") (internal citation omitted); Stengel v. Medtronic, Inc., 676 F.3d 1159, 1167 (9th Cir. 2012 ("A court may consider facts extraneous to the complaint on a motion to dismiss, without converting the motion into one for summary judgment, if such facts are judicially noticeable under Federal Rule of Evidence 201."). Accordingly, to the extent Plaintiff requests that the Court strike filings submitted by Defendants relating to Plaintiff's other cases, such request is denied.
Plaintiff also argues that Defendants have engaged in unlawful practices under the Arizona Consumer Fraud Act, Arizona Revised Statutes section 44-1521 by failing to provide proper notice of the Trustee's Sale. Because Plaintiff's claims relating to Defendants' failure to provide proper notice are now moot, the consumer fraud claim in Plaintiff's proposed amended Complaint fails to state a claim upon which relief can be granted.
Accordingly, allowing Plaintiff to amend his complaint a second time in order to assert these claims would be futile. "Futility of amendment can, by itself, justify the denial of a motion for leave to amend." Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir.1995).
Accordingly, Plaintiff's Second Motion to Amend Complaint (Doc. 31) is denied.