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Albritton v. Tiffany and Bosco, P.A.

United States District Court, Ninth Circuit

June 18, 2013

Sabra Albritton, Plaintiff,
Tiffany And Bosco; P.A., et al., Defendants.


HÉCTOR C. ESTRADA, Magistrate Judge.

The Magistrate Judge has jurisdiction over this matter pursuant to the parties' consent. See 28 U.S.C. § 636(c). (Doc. 30).

Pending before the Court are: (1) Plaintiff's Objection to Magistrate Judge's Pretrial Order of April 23, 2013 (Doc. 41), which the Court construes as a motion for reconsideration; (2) the Tiffany and Bosco Defendants' Motion to Dismiss (Doc. 10); (3) Defendant Bank of New York Mellon's Motion to Dismiss (Doc. 11), in which the Tiffany and Bosco Defendants join ( see Doc. 10, p.1); and (4) Plaintiff's Application for a Temporary Restraining Order or in the Alternative a Permanent Injunction (Doc. 42). For the following reasons, this matter is dismissed for failure to state a claim.


Plaintiff has filed the instant pro se Complaint pursuant to the Fair Debt Collection Practices Act (hereinafter "FDCPA"), 15 U.S.C. § 1692 et seq., arising from Defendants' attempt to non-judicially foreclose on a deed of trust. (Doc. 1). Plaintiff also seeks a permanent injunction and declaratory relief. The named Defendants are: Bank of New York Mellon (hereinafter "BNYM"); Tiffany and Bosco, P.A.; and several individuals from the firm of Tiffany of and Bosco, collectively referred to as the T&B Defendants.[1]

In 2006, Plaintiff borrowed $229, 045 (hereinafter "Loan") from Soma Financial (hereinafter "Lender") to purchase property located at 2541 Sierra Bermeja Drive, Sierra Vista, Arizona. (Complaint, Exh. 1). The accompanying Deed of Trust (hereinafter "DOT") named Pioneer Title Agency, Inc., as the Trustee. (Complaint, Exh. 2). Additionally, the DOT specified that Mortgage Electronic Registration Systems, Inc. ("MERS"), which was "acting solely as a nominee for Lender and Lender's successors and assignees", was named as beneficiary.[2] On August 5, 2011, MERS, through Jorge Valadez, Assistant Secretary of MERS, assigned the DOT to "The Bank of New York Mellon FKA the Bank of New Trustee for the Certificateholders [sic] CWALT, Inc., Alternative Loan Trust 2006-OA3 Mortgage Pass-Through Certificates, Series 2006-OA3." (BNYM's Motion to Dismiss, p. 2) see also Complaint, Exh. 3 (the assignment was recorded in Cochise County, Arizona, on August 11, 2011).[3] On August 9, 2012, Defendant BNYM executed a Substitution of Trustee appointing Defendant David W. Cowles as the successor trustee (hereinafter "Trustee").[4] (Complaint, Exh. 10). The Substitution of Trustee was recorded in Cochise County, Arizona, on October 5, 2012, at 4:28 p.m. ( Id. ). On October 4, 2012, the Trustee executed a Notice of sale pursuant to the DOT to occur on January 4, 2013. (Complaint, Exh. 11). The Notice was recorded in Cochise County, Arizona, on October 5, 2012, at 4:28 p.m. ( Id. ). Plaintiff filed the instant Complaint on December 26, 2012, and the sale has not occurred. However, Plaintiff has notified the Court that the Trustee has noticed the sale for June 21, 2013. (Doc. 43, p.2 & Exh. 1).


Plaintiff has filed an objection to this Court's order of April 23, 2013 (Doc. 41). Because all parties have consented to the jurisdiction of the Magistrate Judge in this case, upon entry of judgment, an aggrieved party may appeal directly to the United States court of appeals from the judgment of the magistrate judge in the same manner as an appeal from any other judgment of a district court. See 28 U.S.C. § 636(c). There is, however, no statutory provision for the interim filing of objections to a magistrate judge's pretrial rulings or orders. See id. Accordingly, the Magistrate Judge construes Plaintiff's document as a motion for reconsideration of the Court's order of April 23, 2013 (Doc. 41). "Motions to reconsider are appropriate only in rare circumstances." Defenders of Wildlife v. Browner, 909 F.Supp. 1342, 1351 (D. Ariz. 1995). "The purpose of a motion for reconsideration is to correct manifest errors of law or fact or to present newly discovered evidence." Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir. 1985). Such motions should not be used for the purpose of asking a court "to rethink what the court had already thought through-rightly or wrongly.'" Defenders of Wildlife, 909 F.Supp. at 1351 (quoting Above the Belt, Inc. v. Mel Bohannan Roofing, Inc., 99 F.R.D. 99, 101 (E.D. Va. 1983)). Plaintiff reasserts the same legal and factual arguments raised in her previous motions, and argues that the Magistrate Judge's interpretation of the law is incorrect. Plaintiff's document provides no basis for reconsideration of the Magistrate Judge's order and is therefore denied. Further, to the extent Plaintiff refers to the Court's authority to vacate the referral to the Magistrate Judge under "extraordinary circumstances, " Plaintiff neither states as cause any extraordinary circumstances, nor requests as relief that the referral be vacated. Thus, Plaintiff's objections will not be construed as a motion to vacate the referral pursuant to 28 U.S.C. §636(c)(4).


Defendants seek dismissal of this action pursuant to Rule 12(b) of the Federal Rules of Civil Procedure for failure to state a claim. Although Plaintiff was advised of the requirements set out in LRCiv 7.2, Rules of Practice of the U.S. District Court for the District of Arizona, for filing a response to the motions and that her failure to respond may result in granting of the motions summarily ( see Doc. 14), Plaintiff did not file any documents captioned as responses. Instead, Plaintiff maintains that she "previously responded to [D]efendants' motion to dismiss in her Replies to [D]efendants' responses to Plaintiff's Motion to Strike in March 2013, [Dkt 25] and [Dkt 28] beginning on pages 5 of the Replies; EFFECT IF THE DEFENDANTS' MOTION TO DISMISS' IS GRANTED.' Plaintiff does not wish to be repetitive or redundant." (Doc. 41, p. 6). In light of Plaintiff's pro se status, the Court will consider the documents cited by Plaintiff as her responses.

Defendants argue that the FDCPA does not apply to this action, nor does Plaintiff's reliance on the Uniform Commercial Code (hereinafter "UCC") or a fraud theory alter this conclusion. Further, according to Defendants, Plaintiff's Chapter 7 discharge has no effect on the DOT. Therefore, Defendants assert that Plaintiff fails to state a claim for relief and this action must be dismissed pursuant to Fed.R.Civ.P. 12(b).

Plaintiff, contending that her allegations must be accepted as true, essentially restates the allegations and legal contentions advanced in her Complaint. ( See Doc. 25, pp. 5-9; Doc. 28, pp. 5-9).

A. Standard

"To survive a motion to dismiss [under Fed.R.Civ.P. 12(b)(6)], a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face;' that is, plaintiff must plead[ ] factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.'" Telesaurus VPC, LLC. v. Power, 623 F.3d 998, 1003 (9th Cir. 2010), cert. denied, __ U.S. __ , 132 S.Ct. 95 (2011), ( quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)); see also Moss v. United States Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009) (to defeat 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."). Dismissal under Rule 12(b)(6) "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. 1988), abrogated on other grounds by Bell Atl. Corp. v. Twombly, 530 U.S. 544 (2007).

"[T]he tenet that a court must accept as true all of the allegations contained in a complaint..." does not apply to legal conclusions. Iqbal, 556 U.S. at 678; see also Telesaurus, 623 F.3d. at 1003 (pleadings that are no more than legal conclusions "are not entitled to the assumption of truth.'") ( quoting Iqbal, 556 U.S. at 679). Thus, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 556 U.S. at 678. Moreover, the court "cannot assume any facts necessary to the [plaintiffs']... claim that they have not alleged." Jack Russell Terrier Network of Northern Calif. v. American Kennel Club, Inc., 407 F.3d 1027, 1035 (9th Cir. 2005).

However, the court will assume "well-pleaded factual allegations, ' be true, and then determine whether they plausibly give rise to an entitlement to relief.'" Telesaurus, 623 F.3d. at 1003 ( quoting Iqbal, 556 U.S. at 679); see also Iqbal, 556 U.S. at 678 ("A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged."). "The plausibility standard is not akin to a probability requirement, ' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Iqbal, 556 U.S. at 678. Determining plausibility is a "context-specific task..." that requires the court to "draw on its judicial experience and common sense." Id. at 679. A complaint cannot survive dismissal where the court can only infer that a claim is merely possible rather than plausible. Id.

As a general rule, the district court may not consider any material beyond the pleadings when resolving a motion to dismiss for failure to state a claim. Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001), impliedly overruled on other grounds as discussed in Gallardo v. DiCarlo, 203 F.Supp.2d 1160, 1162 n.2 (C.D. Cal. 2002). However, the court may consider material submitted as part of the complaint, such as the exhibits which Plaintiff has attached to her Complaint. See Id.

When the plaintiff is pro se, the complaint must be liberally construed in the interests of justice. See Haines v. Kerner, 404 U.S. 519, 520 (1972) ( pro se pleadings are held to "less stringent standards than formal pleadings drafted by lawyers..."); Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (courts must "continue to construe pro se filings liberally...."); Johnson v. Reagan, 524 F.2d 1123, 1124 (9th Cir. 1975)("Pleadings should be liberally construed in the interests of justice, particularly when a pleader is not learned in the law."). Nonetheless, "[p]ro se litigants must follow the same rules of procedure that govern other litigants." King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987), overruled on other grounds by Lacey v. Maricopa County, 693 F.3d 896 (9th Cir. 2012); see also Ghazali v. Moran, 46 F.3d 52 (9th Cir. 1995) (" pro se litigants are bound by the rules of procedure.").

If the Court determines that a pleading could be cured by the allegation of other facts, a pro se litigant is entitled to an opportunity to amend a complaint before dismissal of the action. See Lopez v. Smith, 203 F.3d 1122, 1127-29 (9th Cir. 2000) ( en banc ). The Court should not, however, advise the litigant how to cure the defects. This type of advice "would undermine district judges' role as impartial decisionmakers." Pliler v. Ford, 542 U.S. 225, 231 (2004); see also ...

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