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Ray C. Pitre v. Bana Cwb Cig Hfi 1st Liens; Bachome Loan Servicing Lp; Bank of

December 12, 2011




Pending before the Court is Defendants' Motion to Dismiss the Amended Complaint (Doc. 13). Plaintiff has filed a Response (Doc. 15) and Defendants have filed a Reply in Support of their Motion to Dismiss (Doc. 16). The Court now rules on the Motion.


On or about May 22, 2006, Plaintiff obtained a loan for $144,800.00 from MILA, Inc., DBA Mortgage Investment Lending Associates, Inc. ("Mila"). (Doc. 13, Ex. 1).*fn1 The loan was secured by a Deed of Trust on the real property located at 1827 East Chipman Road, 2 Phoenix, Arizona 85040 (the "Property"). (Id.). MERS, as nominee for MILA, was named 3 the beneficiary under the Deed of Trust. (Id.). The original Trustee was Fidelity National 4 Title. (Id.). On November 21, 2007, a Notice of Substitution of Trustee was recorded, in 5 which Executive Trustee Services, LLC was appointed as the successor Trustee under the 6 Deed of Trust. (Doc. 11, Exhibit A-4). 7 MERS, as nominee for MILA, assigned the Deed of Trust to Executive Trustee 8 Services, LLC. On the same day, Executive Trustee Services, LLC recorded a Notice of 9 Trustee's Sale of the Property. (Id.). The trustee's sale of the Property was originally scheduled for February 28, 2008. (Id.).*fn2

Plaintiff acknowledges that his 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.

On April 22, 2011, Plaintiff filed a Complaint in this Court . (Doc. 1). The Complaint contained a request for "injunctive relief." On April 25, 2011, the Court entered an Order informing Plaintiff that the Court would take no action on the request unless Plaintiff filed a Motion for Temporary Restraining Order or Motion for Preliminary Injunction consistent with Federal Rule of Civil Procedure 65. (Doc. 6). As of the date of this Order, Plaintiff has not filed a Rule 65 Motion for Temporary Restraining Order or Motion for Preliminary Injunction. On June 27, 2011, Defendants filed a Motion to Dismiss the Complaint (Doc. 10). On July 14, 2011, without requesting leave of the Court, Plaintiff filed an Amended Complaint (Doc. 11). On July 29, 2011, Defendants filed a Second Motion to Dismiss, which is the subject of this Order.


Defendants have moved to dismiss the Amended Complaint for failure to state a claim 3 upon which relief can be granted pursuant to Rule 12(b)(6) of the Federal Rules of Civil 4 Procedure. To survive a Rule 12(b)(6) motion for failure to state a claim, a complaint must 5 meet the requirements of Rule 8. Rule 8(a)(2) requires a "short and plain statement of the 6 claim showing that the pleader is entitled to relief," so that the defendant has "fair notice of 7 what the . . . claim is and the grounds upon which it rests." Bell Atl. Corp. v. Twombly, 550 8 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 9 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 his Amended Complaint liberally, even when evaluating it under the Iqbal standard. Johnson v. Lucent Technologies Inc.,653 F.3d 1000, 1011 (9th Cir. 2011).

1 When a Plaintiff makes allegations of fraud, he must meet the requirements of Federal 2 Rules of Civil Procedure 9(b). "Rule 9(b) requires a party to state with particularity the 3 circumstances constituting fraud or mistake, including the who, what, when, where, and how 4 of the misconduct charged. In addition, the plaintiff must set forth what is false or 5 misleading about a statement, and why it is false." Ebeid ex rel. U.S. v. Lungwitz,616 F.3d 6 993, 998 (9th Cir. 2010) (internal citations and quotations omitted). "Rule 9(b) does not 7 allow a complaint to merely lump multiple defendants together but require[s] plaintiffs to 8 differentiate their allegations when suing more than one defendant . . .and inform each 9 defendant separately of the allegations surrounding his alleged participation in the fraud."

Swartz v. KPMG LLP, 476 F.3d 756, 765 (9th Cir.2007) (internal citation omitted).

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 move to dismiss the Amended Complaint because Plaintiff has failed to meet the pleading requirements of Federal Rules of Civil Procedure 8 and 9(b) and failed to ...

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