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Ripa v. Federal National Mortgage Association

United States District Court, Ninth Circuit

October 21, 2013

Alan Ripa, Plaintiff
Federal National Mortgage Association, Wells Fargo & Company, Wells Fargo NA, Unknown Defendants 1-100, Unknown, Third Party Defendants 1-100, Defendants.


DAVID G. CAMPBELL, District Judge.

Defendants Wells Fargo Bank, N.A. and Federal National Mortgage Association ("Fannie Mae") have filed a motion to dismiss pursuant to Rules 8(a), 9(b) and 12(b)(6) of the Federal Rules of Civil Procedure. Doc. 11. The motion is fully briefed and no party has requested oral argument. For the following reasons, the Court will grant the motion.[1]

I. Background.

Plaintiff Alan Ripa obtained a $137, 600 loan from Bank One in December 2002 (the "Loan"). Doc. 11 at 1. The Loan was secured by real property located at 6732 E. Latham Street, Scottsdale, Arizona. Id. Bank One later assigned the Deed of Trust to another party and that party assigned the Deed of Trust to Wells Fargo. Id. at 2. On October 2, 2009, Wells Fargo appointed Michael A. Bosco, Jr. as successor trustee. Id. Plaintiff defaulted on his repayment obligations several times, and each time Mr. Bosco recorded a Notice of Trustee's Sale. Id. Plaintiff's property was sold at a trustee's sale on September 10, 2010, but that sale was nullified due to error. Id.

Plaintiff alleges that he sought loan modification services but "encountered persistent incompetent responses." Doc. 1-1, ¶ 17. He contends that Wells Fargo's attempts to foreclose were "illegal, " and that foreclosure was pursued on an "illegal dual track" while he was seeking loan modification. Id., ¶¶ 17, 22, 24-25. He also asserts that the foreclosure on September 10, 2010, was wrongful and illegally deprived him of his home for more than one year, during which time it was vandalized. Id., ¶¶ 18-22. Additionally, Plaintiff alleges that Wells Fargo is party to a 2012 consent judgment entered in United States of America, et al. v. Bank of America ("Consent Judgment"), that contains promised "conduct remedies" upon which he relied. Id., ¶ 13.[2]

Plaintiff asserts fourteen claims against Wells Fargo, Fannie Mae and other defendants, including: (1) violation of A.R.S. § 44-1522 by conduct, (2) violation of A.R.S. § 44-1522 by omission, (3) breach of contract, (4) violation of A.R.S. Title 31, Chapter 6.1, (5) negligent misrepresentation, (6) fraudulent concealment, (7) failure to hire, train or supervise employees, (8) breach of Consent Judgment, (9) constructive fraud, (10) equitable estoppel, (11) promissory estoppel, (12) violation of the duty of good faith and fair dealing, (13) common law fraud, and (14) wrongful foreclosure.

II. Legal Standard.

A. Rule 8(a).

Rule 8(a)(2) requires that a pleading "contain a short and plain statement of the claim showing that the pleader is entitled to relief[.]" See Fed.R.Civ.P. 8(a)(2); Porter v. Jones, 319 F.3d 483, 494 (9th Cir. 2003). "[A] complaint generally must satisfy only the minimal notice pleading requirements of Rule 8(a)(2)." Id.

B. Rule 9(b).

Rule 9(b) requires that a plaintiff alleging fraud or mistake "state with particularity the circumstances constituting fraud or mistake." Fed.R.Civ.P. 9(b). Rule 9(b) has been interpreted by the Ninth Circuit to require the pleader to "state the time, place, and specific content of the false representations as well as the identities of the parties to the misrepresentation." Schreiber Distrib. Co. v. Serv-Well Furn. Co., 806 F.2d 1393, 1401 (9th Cir. 1986). The plaintiff must also "set forth... an explanation as to why the disputed statement was untrue or misleading when made." Yourish v. Cal. Amplifier, 191 F.3d 983, 993 (9th Cir. 1999); see also Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1103 (9th Cir. 2003) ("Averments of fraud must be accompanied by the who, what, when, where, and how of the misconduct charged.").

C. Rule 12(b)(6).

When analyzing a complaint for failure to state a claim to relief under Rule 12(b)(6), the well-pled factual allegations "are taken as true and construed in the light most favorable to the nonmoving party." Cousins v. Lockyer, 568 F.3d 1063, 1067 (9th Cir. 2009) (citation omitted). Legal conclusions couched as factual allegations "are not entitled to the assumption of truth, " Ashcroft v. Iqbal, 556 U.S. 662, 680 (2009), and therefore "are insufficient to defeat a motion to dismiss for failure to state a claim, '" In re Cutera Sec. Litig., 610 F.3d 1103, 1108 (9th Cir. 2010) (citation omitted). To avoid a Rule 12(b)(6) dismissal, the complaint must plead "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). This 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 (quoting Twombly, 550 U.S. at ...

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