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Kuc v. Christiana Trust ARLP 3

United States District Court, D. Arizona

January 6, 2016

Anthony Joseph Kuc, Plaintiff,
Christiana Trust ARLP 3, et al., Defendants.


Douglas L. Rayes United States District Judge

Before the Court is Defendants’ Christiana Trust ARLP 3; Ocwen Loan Servicing, LLC; Western Progressive Arizona Inc.; and Fay Servicing, LLC’s Motion to Dismiss. (Doc. 6.) Defendants also request that the Court take judicial notice of several documents in connection with the mortgage at issue in this case. (Doc. 6-1.) No party requested oral argument. For the reasons stated below, Defendants’ motion to dismiss and request for judicial notice are granted.


In 2007, Plaintiff Anthony Kuc obtained a Loan from Countrywide Bank, FSB (the “Loan”) to purchase property located at 5804 Kingman Reef Lane, Kingman, Arizona 86409. (Doc. 1 at 2-3).[1] The Loan was secured by a Deed of Trust (“DOT”) recorded against the same property. (Doc. 6-2 at 2.)[2]

On June 16, 2011, Countrywide assigned the DOT to BAC Home Loans Servicing, LP (“BAC”). (Id. at 19.). On November 11, 2014, BAC assigned the DOT to Defendant Christiana Trust. (Id. at 20.) On February 18, 2015, Defendant Western Progressive was appointed as substitute trustee for the DOT. (Doc. 1 at 70.) After Kuc defaulted on the Loan, Western Progressive recorded a Notice of Trustee’s Sale and scheduled an auction of the property for August 3, 2015. (Doc. 6-2 at 27.) Before the auction, on July 30, 2015, Kuc filed this action seeking damages and injunctive relief against all Defendants. (Doc. 1.) Defendants now move to dismiss the complaint in its entirety.


To survive dismissal for failure to state a claim pursuant to Federal Rule of Civil Procedure 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). Although ''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. Daimler Chrysler 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. 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. (internal citations omitted) (quoting Twombly, 550 U.S. at 557).

When analyzing a complaint for failure to state a claim under Rule 12(b)(6), A[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 Aconclusory 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).


Kuc brings three causes of action: (1) violation of the Real Estate Settlement Procedures Act (“RESPA”), (2) violation of the Fair Debt Collection Practices Act (“FDCPA”), and (3) violation of the Truth in Lending Act (“TILA”). (Doc. 1 at 1-9.) The complaint does not differentiate between the conduct of each Defendant. Instead, the allegations pertain collectively to all Defendants.

I. RESPA Claim

Kuc alleges that “Defendant(s) deliberately failed to respond completely, in a proper and timely way to Plaintiff s ‘qualified written requests’ for information about, and corrections to, his mortgage account, in violation of 15 U.S.C. § 2605.” (Id. at 3-4.) Kuc attached his qualified written requests to the complaint. (Id. at 16-61.)[3]

Section 2605 provides that “[i]f any servicer of a federally related mortgage loan receives a qualified written request from the borrower (or an agent of the borrower) for information relating to the servicing of such loan, the servicer shall provide a written response” and “provide the borrower with a written explanation or clarification that includes . . . information requested by the borrower [and] the name and telephone number of an individual employed by, or the officer or department of, the servicer who can provide assistance to the borrower.” 12 U.S.C. § 2605(e). A qualified written request must include the borrower’s information and include a statement of the reasons the borrower believes the account is in error. Id. § 2605(e)(1)(B). A qualified written request “is one that relates to the servicing of the loan.” Brabant v. JP Morgan Chase Bank, No. CV 11-00848-TUC-JGZ, 2012 WL 2572281, at *9 (D. Ariz. July 2, 2012) (citing Consumer Solutions REO, LLC v. Hillery, 658 F.Supp.2d 1002, 1014 (N.D. Cal. 2009)).

Kuc’s qualified written requests are entitled: “Dispute of Debt and Validation of Debt” and “Dispute of Alleged Debt.” (Doc. 1 at 17, 47.) The documents contain several pages of summarized case law and largely dispute the validity of the Loan. Although the first request contains over twenty-five “servicing-related questions, ” they do not relate to servicing of the Loan. Rather, they relate to the chain of title and the history of assignments related to the mortgage. (Id. at 26-29.) In sum, neither of the ...

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