Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Hamilton v. Tiffany & Bosco PA, Seterus Incorporated

United States District Court, D. Arizona

August 20, 2014

Joseph M. Hamilton, Plaintiff,
v.
Tiffany & Bosco PA, Seterus Incorporated, Defendants.

ORDER

G. MURRAY SNOW, District Judge.

Pending before this Court are Defendant Seterus, Inc.'s Motion to Dismiss (Doc. 6) and its accompanying Request for Judicial Notice (Doc. 6-1). Also before the Court is Plaintiff's Motion for this Court to Take Judicial Notice. (Doc. 9.) For the following reasons Seterus's Request for Judicial Notice is granted, the Plaintiff's Motion to Take Judicial Notice is granted in part and denied in part, and Seterus's Motion to Dismiss is granted in part and denied in part. Hamilton is further ordered to show cause why Tiffany & Bosco should not be dismissed.

BACKGROUND

On February 1, 2007, Joseph M. Hamilton obtained a loan of $356, 250.00 to purchase a home in Anthem, Arizona. (Doc 6-1, Ex. 1.) The loan was secured by a Deed of Trust ("DOT") identifying: Provident Funding Associated, LP, as the Lender; Mortgage Electronic Registry Systems, Inc. ("MERS") as the nominee beneficiary; and First American Title Company as the Trustee. ( Id. )

On September 3, 2009, a Substitution of Trustee was recorded in which CitiMortgage, Inc. appointed Michael A. Bosco, Jr. as Successor Trustee under the DOT. ( Id. at Ex. 2.) On September 22, 2009, MERS recorded an Assignment of DOT which assigned all beneficial interest in the note and DOT to CitiMortgage, Inc. ( Id. at Ex. 3.) On December 1, 2010, CitiMortgage recorded a Corporate Assignment of DOT, assigning all beneficial interest in the note and DOT to Federal National Mortgage Association ("FNMA"). ( Id. at Ex. 4.)

Hamilton filed a Complaint on April 4, 2014 alleging various defects relating to the trustee's sale of his home. (Doc. 1.) This was not the first lawsuit he filed concerning his home and mortgage. He has unsuccessfully litigated issues related to his home and mortgage on three previous occasions in three different courts.

First, Hamilton filed an Objection to Proof of Claim against IBM - Lender Business Process Services on April 26, 2011 in his bankruptcy case before the bankruptcy court of this district. (Doc 6-1, Ex. 14.) He argued that it did not have the authority to submit a claim in relation to his mortgage and home, but the court overruled his objection without prejudice. ( Id. at Ex. 15.) IBM - Lender Business Process Services apparently now operates under the name Seterus and is the moving defendant.

Second, Hamilton filed a complaint on July 10, 2012 in an Arizona state court against Federal National Mortgage Association seeking to quiet title. ( Id. at Ex. 9.) In that case, Hamilton failed to respond to a motion to dismiss and the court dismissed the case without prejudice in September 2012. ( Id. at Ex. 10.)

Third, Hamilton filed a complaint on November 6, 2012 in this Court against FNMA again seeking to quiet title. ( Id. at Ex. 11.) In that case, this Court granted a motion to dismiss with prejudice in February 2013 ( Id. at Ex. 12) and denied a motion for reconsideration ( Id. at Ex. 13).

DISCUSSION

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." Id.

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).

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). Under the incorporation by reference doctrine, the court may also consider documents "whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the pleading." Branch, 14 F.3d at 454.

Additionally, Federal Rule of Evidence 201 allows the court to take judicial notice of certain items without converting the motion to dismiss into one for summary judgment. Barron v. Reich, 13 F.3d 1370, 1377 (9th Cir. 1994). The court may take judicial notice of facts "not subject to reasonable dispute" because they are either: "(1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Fed.R.Evid. 201; see also Lee v. City of L.A., 250 F.3d 668, 689 (9th Cir. 2001) (noting that the court may take judicial notice of undisputed "matters of public record"). The court may disregard allegations in a complaint that are contradicted by matters properly subject to judicial notice. Daniels-Hall v. Nat'l Educ. Ass'n, 629 F.3d 992, 998 (9th Cir. 2010).

II. Judicial Notice

Seterus's Request for Judicial Notice contains public records including documents from the county recorder's office and court filings. These documents are "not subject to reasonable dispute" because they are "capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Fed.R.Evid. 201. Hamilton raises no objection or dispute in relation to them; in fact several of them are the same documents that Hamilton attached to his Complaint. The Court grants Seterus's request and takes judicial notice of all of the records Seterus submitted for purposes of the Motion to Dismiss.

Most of Hamilton's Motion for Judicial Notice does not identify or provide necessary information for this Court regarding any adjudicative facts. He refers to the Consumer Financial Protection Bureau ("CFPB"). Hamilton cites a statute giving the CFPB its authority and argues about what the CFPB and the statute are supposed to regulate. Beyond this, the motion only reiterates allegations from the Complaint. Apart from the existence of the CFPB, Hamilton's Motion does not establish any facts of which the Court can take notice. The legal arguments about the authority of the CFPB and the regulations from the statute are not facts. Hamilton's reply does not clarify what facts were intended and instead raises additional legal arguments based on Arizona statutes and cases in Arizona ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.