United States District Court, D. Arizona
Craig A. Cameron; Jennifer A. Cameron, Plaintiffs,
Wells Fargo Bank NA; U.S. Bank; Unknown Parties, Defendants.
G. MURRAY SNOW, District Judge.
Pending before the Court is Defendant Wells Fargo Bank, N.A.'s Motion to Dismiss. (Doc. 21.) For the following reasons, the Motion is granted in part and denied in part.
Plaintiffs Craig and Jennifer Cameron are a husband and wife who obtained a loan from Oracle Home Mortgage in August 2005 in the amount of $228, 000 on their home in Gold Canyon, Arizona. (Doc. 21-2.) From 2008 to the present, the Camerons have made numerous attempts to modify or refinance their mortgage including by filing for bankruptcy. The Camerons continued to make timely monthly payments based on a modified amount between 2008 and 2012.
The Deed of Trust names Mortgage Electronic Registration Systems, Inc. ("MERS") as the "beneficiary under this Security Instrument." ( Id. at ¶¶ E, 22.) MERS assigned its interest to Wells Fargo. (Doc. 21-4.) Wells Fargo appointed trustees in 2010 and 2013 that scheduled trustee sales but did not hold them. (Docs. 21-4 to 21-8.)
On August 15, 2013, the Camerons initiated an action in Arizona Superior Court, which Wells Fargo removed to this Court. (Docs. 1-1, 1.) The Camerons later amended their Complaint (Doc. 10), then corrected that Amended Complaint (Doc. 13), and finally submitted a Second Corrected Amended Complaint ("SAC") (Doc. 18). As required under this Court's previous orders (Docs. 4, 8), the parties have conferred but were unable to determine whether any additional amendments to that SAC would cure these alleged deficiencies. Wells Fargo filed the instant Motion to Dismiss on November 21, 2013. (Doc. 21.)
I. Legal Standard
Federal Rule of Civil Procedure 12(b)(6) is designed to "test the legal sufficiency of a claim." Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). To survive dismissal for failure to state a claim pursuant to Rule 12(b)(6), a complaint must contain more than "labels and conclusions" or a "formulaic recitation of the elements of a cause of action"; it must contain factual allegations sufficient to "raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). While "a complaint need not contain detailed factual allegations;... it must plead enough facts to state a claim to relief that is plausible on its face.'" Clemens v. DaimlerChrysler Corp., 534 F.3d 1017, 1022 (9th Cir. 2008) (quoting Twombly, 550 U.S. at 570). "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." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). The plausibility standard "asks for more than a sheer possibility that a defendant has acted unlawfully."
When analyzing a complaint for the failure to state a claim under Rule 12(b)(6), "[a]ll allegations of material fact are taken as true and construed in the light most favorable to the nonmoving party." Smith v. Jackson, 84 F.3d 1213, 1217 (9th Cir. 1996). However, legal conclusions couched as factual allegations are not given a presumption of truthfulness, and "conclusory allegations of law and unwarranted inferences are not sufficient to defeat a motion to dismiss." Pareto v. FDIC, 139 F.3d 696, 699 (9th Cir. 1998).
Federal Rule of Civil Procedure 9(b) requires more specificity for allegations of fraud, including an account of the "time, place, and specific content of the false representations as well as the identities of the parties to the misrepresentations." Edwards v. Marin Park, Inc., 356 F.3d 1058, 1066 (9th Cir. 2004) (citation omitted). In addition to time, place, and content allegations, the plaintiff also must explain what is false or misleading about the statements or omissions. In re Stac Elecs. Sec. Litig., 89 F.3d 1399, 1404 (9th Cir. 1996). "To comply with Rule 9(b), allegations of fraud must be specific enough to give defendants notice of the particular misconduct which is alleged to constitute the fraud charged so that they can defend against the charge and not just deny that they have done anything wrong." Bly-Magee v. California, 236 F.3d 1014, 1019 (9th Cir. 2001) (citation, quotations omitted).
As a general rule, "a district court may not consider any material beyond the pleadings in ruling on a Rule 12(b)(6) motion." Branch v. Tunnell, 14 F.3d 449, 453 (9th Cir. 1994), overruled on other grounds by Galbraith v. Cnty. of Santa Clara, 307 F.3d 1119 (9th Cir. 2002) (citation omitted). However, documents subject to judicial notice may be considered on a motion to dismiss. In doing so, the Court does not convert a motion to dismiss to one for summary judgment. See Mack v. South Bay Beer Distrib., 798 F.2d 1279, 1282 (9th Cir. 1986), overruled on other grounds by Astoria Fed. Sav. & Loan Ass'n v. Solimino, 501 U.S. 104 (1991).
A. Arizona's Consumer Fraud Act Claims (Counts One and Two)
The Arizona CFA grants an implied private right of action against persons who violate its provisions. Dunlap v. Jimmy GMC of Tucson, Inc., 136 Ariz. 338, 342, 666 P.2d 83, 87 (Ct. App. 1983). To prevail on a CFA claim in Arizona, the plaintiff must show "(1) a false promise or misrepresentation made in connection with sale or advertisement of merchandise, and (2) consequent and proximate injury." Stratton v. Am. Med. Sec., Inc., No. CV-07-1491-PHX-SMM, 2008 WL 2039313 at *7 (D. Ariz. May 12, 2008) (citing Kuehn v. Stanley, 208 Ariz. 124, 129, 91 P.3d 346, 351 (Ct. App. 2004)). Because claims brought under the CFA involve allegations of fraud, they must be pled with particularity. Silving v. Wells Fargo Bank, NA, 800 F.Supp.2d 1055, 1075 (D. Ariz. 2011).
As a general matter, Wells Fargo asks that most of the allegations be dismissed based on the statute of limitations. The Camerons respond that the statute was tolled because Arizona uses the discovery rule to determine the start date for the statute of limitations. Whether a claim is time-barred is "not generally amenable to resolution on a Rule 12(b)(6) motion" because the Court cannot consider materials outside the pleadings and the applicability of the equitable tolling doctrine often depends on matters outside the pleadings. Cervantes v. City of San Diego, 5 F.3d 1273, 1276 (9th Cir. 1993). Under Arizona's discovery rule, a "plaintiff's cause of action does not accrue until the plaintiff knows or, in the exercise of reasonable diligence, should know the facts underlying the cause." Gust, Rosenfeld & Henderson v. Prudential Ins. Co. of Am., 182 Ariz. 586, 898 P.2d 964, 966 (1995). Accordingly, the allegations in these counts, and in the other counts discussed below, are not dismissed based on the statute of limitations at this stage in the litigation.
Wells Fargo also contends that dismissal of Counts One and Two is appropriate under Rule 8(a), which requires "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a). It argues that the Camerons have failed to comply with Rule 8(a) because they do not specify which statements in the body of the SAC form the basis of their CFA claims. (Doc. 14 at 6.) It cites cases that have dismissed complaints that had "the factual elements of a cause of action present but scattered throughout the complaint and not organized into a short and plain statement of the claim.'" Sparling ...