RICHARD A. JONES, District Judge.
This matter comes before the court on defendant JPMorgan Chase Bank N.A.'s ("Chase") FRCP 12(b)(6) motion to dismiss plaintiff's amended complaint. Dkt. # 38. Defendant Northwest Trustee Services, Inc. ("NWTS") joined in Chase's motion. Dkt. # 41. Pro se plaintiff Deborah Beaton opposed the motion on the basis that "[t]he record before the Court is incomplete because the Defendants have not participated in discovery by producing documents the Plaintiffs have requested."
In August 2008, Beaton executed a promissory note for $271,950.00, payable to the order of Washington Mutual Bank, FA ("WaMu"), which was secured by a deed of trust. Dkt. # 39-2 (Ex. 2 to Request for Judicial Notice ("RJN")), # 39-3 (Ex. 3 to RJN).
On July 22, 2011, NWTS filed a motion to dismiss, and Chase joined in that motion. Dkt. ## 25, 28. On August 5, 2011, Beaton filed a response and a motion for leave to file an amended complaint based on the court's denial of injunctive relief. The court granted Beaton's motion for leave to file an amended complaint, and denied defendants' motion to dismiss as moot. Beaton filed her amended complaint on October 7, 2011. Beaton presents the following theories for relief: (1) violation of 42 U.S.C. §§ 1981-1986 (disparity between classes of person (borrower and lender)); (2) violation of the Real Estate Settlement Procedures Act ("RESPA") (named Breach of Contract — unanswered QWR); (3) violation of the Fair Debt Collection Practices Act ("FDCPA") (named Equitable Estoppel — invalid debt); (4) violation of the Fair Credit Reporting Act ("FCRA") (named Erroneous Credit Reporting); (5) fraudulent foreclosure of incorrect note; (6) transaction prohibited by federal tax laws (named forfeiture on foreclosure); (7) recoupment and setoff; (8) violation of the Washington Deeds of Trust Act ("DTA"); and (9) Slander of Title — Notice of Trustee's Sale.
When considering a motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6), "the court is to take all well-pleaded factual allegations as true and to draw all reasonable inferences therefrom in favor of the plaintiff." Wyler Summit P'ship v. Turner Broadcasting Sys., Inc., 135 F.3d 658, 663 (9th Cir. 1998). However, the complaint must indicate more than mere speculation of a right to relief. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). "[F]or a complaint to survive a motion to dismiss, the non-conclusory `factual content,' and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief." Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice. Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949 (2009).
Dismissal can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). This court holds the pleadings of pro se complainants to less stringent standards than those of licensed attorneys. Haines v. Kerner, 404 U.S. 519, 520 (1972). Nevertheless, every complainant must demonstrate some claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). If the court dismisses the complaint or portions thereof, it must consider whether to grant leave to amend. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000).
"Three goals of the Washington deed[s] of trust act are: (1) that the nonjudicial foreclosure process should be efficient and inexpensive; (2) that the process should result in interested parties having an adequate opportunity to prevent wrongful foreclosure; and (3) that the process should promote stability of land titles. Plein v. Lackey, 149 Wn.2d 214, 225, 67 P.3d 1061 (2003). The DTA provides the specific procedure for stopping a trustee's sale on any proper grounds. RCW 61.24.130. This statutory procedure is the only means by which a grantor may preclude a sale once foreclosure has begun with receipt of the notice of sale and foreclosure. Plein, 149 Wash. 2d at 226. A party waives the right to post-sale remedies where the party (1) received notice of the right to enjoin the sale, (2) had actual or constructive knowledge of a defense to foreclosure prior to the sale, and (3) failed to obtain a court order enjoining the sale. Id. at 227-28; Brown v. Household Realty Corp., 146 Wn.App. 157, 163, 189 P.3d 233 (2008).
In July 2011, the legislature modified the waiver doctrine to exempt claims for common law fraud or misrepresentation, violation of Washington's Consumer Protection Act ("CPA"), failure by a trustee to comply with the DTA, and violation of RCW 61.24.026. RCW 61.24.127. Although these types of claims are allowed post-foreclosure, they will not operate to encumber or cloud the title to the property auctioned at the trustee's sale. RCW 61.24.127(2)(e).
Here, Beaton received the notice of trustee sale and filed this action as a result.
The court has taken judicial notice of the agreement provided to the court at Exhibit 5 to the RJN and available on a government website at http://www.fdic.gov/about/freedom/Washington_Mutual_P_and_A.pdf. In section 2.1 of the agreement, Chase expressly assumes all mortgage servicing rights and obligations of WaMu. However, in section 2.5, Chase expressly disclaimed potential liabilities related to borrower claims on WaMu loans arising from WaMu's conduct:
Dkt. #39-5 (Ex. 5 to RJN).
Courts around the country agree that pursuant to this agreement Chase is not responsible for any liability of WaMu related to loans made by WaMu. See Yeomalakis v. F.D.I.C., 562 F.3d 56, 60 (1st Cir. 2009) (FDIC was and remains the appropriate party in interest) (citing 12 U.S.C. § 1821(d)(2)(A)(i)); Nguyen v. JPMorgan Chase Bank, Case No. 11-1908 DOC, 2012 WL 294936, *3 (noting that district courts within the Ninth Circuit have consistently held that Chase is not liable for borrower claims arising from WaMu related loans).
Accordingly, the court agrees with Chase that its agreement with the FDIC requires dismissal of Beaton's claims related to liability of WaMu related to loans made by WaMu prior to September 25, 2008. However, Beaton's claim of violation of the DTA, as construed by the court, occurred after Chase purchased WaMu. See Ansanelli v. JP Morgan Chase Bank, N.A. Case No. 10-3892 WHA, 2011 WL 1134451 (N.D. Cal. 2011) (Chase may be liable for its own conduct related to WaMu loans). Nevertheless, Beaton must plead factual allegations, rather than conclusory statements. Her amended complaint is devoid of factual allegations that could support a potential DTA claim. Accordingly, the court dismisses Beaton's DTA claim without prejudice.
Beaton asserts a claim for "fraudulent foreclosure," but has failed to plead fraud with the requisite particularity pursuant to Fed. R. Civ. P. 9(b). See Schwartz v. KPMG LLP, 476 F.3d 756, 764 (9th Cir. 2007) (complaint must include an account of the time, place, and specific content of the false representations as well as the identities of the parties to the misrepresentations). Accordingly, the court dismisses Beaton's fraud claim without prejudice.
Beaton fails to allege facts to state a claim of relief under sections 1981-1986. Beaton makes no allegation that defendants engaged in purposeful or intentional discrimination on the basis of race. Accordingly, the court dismisses her section 1981 and 1982 claims. See Gen. Bldg. Contractors Ass'n, Inc. v. Penn., 458 U.S. 375, 391 (1982) (section 1981 "can be violated only by purposeful discrimination"); Jones v. Alfred H. Mayer Co., 392 U.S. 409, 413 (1968) (section 1982 "deals only with racial discrimination"). Beaton also makes no allegation that defendants acted under color of state law or deprived her of some right secured by the Constitution or laws of the United States. Accordingly, the court dismisses her section 1983 claim. See Ouzts v. Md. Nat'l Ins. Co., 505 F.2d 547, 550 (9th Cir. 1974) ("purely private conduct, no matter how wrongful, is not within the protective orbit of section 1983"). Beaton also fails to allege racial or class-based animus. Accordingly, the court dismisses her section 1985 and 1986 claims as well. See Griffin v. Breckenridge, 403 U.S. 88, 102 (1971) (section 1985(3) requires "some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators' action"); Bretz v. Kelman, 773 F.2d 1026, 1028-30 (9th Cir. 1985) (section 1985(2) must be premised on "an allegation of class-based animus"); Trerice v. Pedersen, 769 F.2d 1398, 1403 (9th Cir. 1985) ("a cause of action is not provided under 42 U.S.C. § 1986 absent a valid claim for relief under section 1985).
The court also finds that allowing leave to amend these claims would be futile. Accordingly, these claims are dismissed with prejudice.
Under the RESPA, a loan servicer must provide certain information upon a qualified written request "for information relating to the servicing of such a loan." 12 U.S.C. § 2605(e)(1)(A). "Servicer" is defined as "the person responsible for servicing of a loan (including the person who makes or holds a loan if such person also services the loan)." Id. § 2605(i)(2). "Servicing" is defined as "receiving any scheduled periodic payments from a borrower pursuant to the terms of any loan . . . and making the payments of principal and interest and such other payments with respect to the amounts received from the borrower as may be required pursuant to the terms of the loan. Id. § 2605(i)(3). "Qualified written request" is defined as written correspondence that include, or otherwise enable the servicer to identify, the name and account of the borrower, and include a statement of the reasons that the borrower believes the account is in error, or that provide sufficient detail to the servicer regarding information relating to the servicing of the loan sought by the borrower. Id. § 2605(e)(1)(B); 24 C.F.R. 3500.21(e)(2). Plaintiff alleges that she "sent a Qualified Written Request to the Defendant Chase, and to date Plaintiff has never received any response and/or received an inadequate response that failed to comply with 12 U.S.C. § 2605(e). . . . A copy of the Plaintiff's Qualified Written Request is attached as an exhibit." Dkt. # 34 (Am. Compl.) ¶ 20. The QWR attached to plaintiff's amended complaint identifies NWTS, not Chase. Id. at 42 (Ex. F to Am. Compl.). See Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987) (court may consider documents attached to complaint as part of complaint in determining whether plaintiff can prove any set of facts in support of the claim). Plaintiff has not alleged whether either Chase or NWTS were servicing her loan. Accordingly, the court finds that Beaton has failed to state a claim under the RESPA against both NWTS and Chase.
Plaintiff alleges that defendants violated the FDCPA because they "failed to validate the debt." Dkt. # 34 (Am. Compl.) ¶ 21. The court construes plaintiff's claim as being brought under 15 U.S.C. § 1692g, which requires a "debt collector" to send a consumer written notice of certain information, including that the consumer has 30 days to dispute the debt in writing. 15 U.S.C. § 1692g(a). Nevertheless, the court finds that plaintiff has failed to plead facts sufficient to state a claim for a violation of the FDCPA. Plaintiff has not alleged any facts that would demonstrate that defendants were "debt collectors" within the meaning of 15 U.S.C. § 1692a(6). See also 15 U.S.C. § 1692f(6). Accordingly, this claim is dismissed without prejudice.
Beaton's FCRA claim is asserted against only Chase. Dkt. # 34 ¶ 22. Because plaintiff does not allege that Chase is a "consumer reporting agency" or "user of credit information," the court construes plaintiff's claim as being brought under 15 U.S.C. § 1681s-2(b). Under section 1681s-2(b), a "furnisher" of information provided to credit agencies has several duties that arise when the furnisher receives notice from a consumer reporting agency that a consumer had disputed the completeness or accuracy of information in the consumer's file. 15 U.S.C. § 1681s-2(b)(1). Plaintiff alleges that she properly disputed the alleged debt to credit reporting companies. Dkt. # 34 ¶ 22. However, she does not allege whether a consumer reporting agency conveyed to Chase a notice that would have triggered its investigation and reporting duties under section 1681s-2(b), or whether any of those duties were violated. Accordingly, the court dismisses Beaton's FCRA claim without prejudice.
Beaton's federal tax claims purport to rely on 26 U.S.C. §§ 856, 857(b)(6)(B)(iii) and 1221(a)(1). Section 856 provides the definition of a "real estate investment trust" and section 857(b) provides the method of taxation of real estate investment trusts and holders of shares or certificates of beneficial interest. Section 857(b)(6) imposes a tax on net income derived from "a sale or other disposition of property described in section 1221(a)(1) which is not foreclosure property." 26 U.S.C. § 857(b)(6)(B)(iii). Section 1221 defines "capital asset." Plaintiff has not alleged the existence of a "real estate investment fund." Even if she did, plaintiff's property was a foreclosure property, so any attempt to amend would be futile. Accordingly, the court dismisses plaintiff's federal tax claims with prejudice.
For all the foregoing reasons, the court GRANTS defendants' motion to dismiss as follows:
Beaton may file her Second Amended Complaint within forty-five (45) days of the date of this order. She may not state claims for recoupment and setoff, slander of title, violation of federal tax laws, or violation of 42 U.S.C. §§ 1981-1986.